Lord Sainsbury of Turville: My Lords, this Question is clearly about whether we will be copying the French. I do not know what the French view on tidal energy is. However, as the noble Lord knows, we are supporting all the renewable forms of energy with considerable sums of money. In fact, through the renewable obligation, this will reach nearly £1 billion a year by 2010.

Lord Sainsbury of Turville: My Lords, we will issue the terms of reference shortly. We have said that we will produce the White Paper during the course of next year, and out of that will come clear policies for what we will do.

Lord Corbett of Castle Vale: My Lords, not including this House. Even better news is that the peak winds arrive exactly to match peak electricity demands. Would it not make more sense to redouble the investment that we are putting into the development of offshore and onshore wind power and also to steam ahead with tidal and wave power as well?

Lord Crickhowell: My Lords, it is not really rather important that we take account of the policies of the French Parliament, as we already use a great deal of electricity from France that is generated by nuclear power—and, if the policies of Her Majesty's Government fail, we shall probably have to use even more French nuclear power?

Baroness Carnegy of Lour: My Lords, have the Government studied why it is that the people of France are perfectly happy to build an increasing number of nuclear power stations? They are still doing it, are very happy to do it and seem to have no problems with worrying about danger. Have the Government studied why that is, and are they going to learn the lessons from that?

Lord Sainsbury of Turville: My Lords, I do not believe that any study has been done on that, but it is an interesting fact that countries that do not have their own indigenous sources of energy tend to have a much greater enthusiasm for nuclear. The two obvious examples of that are France and Japan, and the reasons for that are very obvious—that if you are reliant on sources from other countries, there is a real issue of energy security. Therefore, those countries are much keener to have nuclear, because they believe that it gives them energy security.

The Earl of Northesk: My Lords, I am grateful to the Minister for that reply. While acknowledging that the prison estate in Scotland is the responsibility of the Scottish Executive, is it not the case that a fingerprint recognition system was installed at Glenochil high security prison? Is it not also the case that, within short order of it having been installed, inmates had spoofed and circumvented the system and gained access to all parts of the prison—even to the extent, as some prison staff have suggested, of settling old scores?

Baroness Scotland of Asthal: My Lords, biometric ID cards will relate to any citizen who seeks to apply for them, so there will be no different provisions for those who are in prison. This Question deals with the extent to which we are currently using biometric data in order to monitor those who go into and out of prison and who are within prison. As I have said, we have recently been using biometric identifiers to very good effect.

Lord Skelmersdale: My Lords, while accepting that the Minister has nothing in her brief about the situation in Scotland, what my noble friend was asking about, as I understand it, was the biometric operation of door locks between various parts of an individual prison estate, which have been circumvented by prisoners. Do such door locks occur in England, Wales or Northern Ireland?

Lord Ackner: My Lords, I have three questions for my noble and learned friend. They grow progressively shorter—the last one is very short indeed. First, does the noble and learned Lord the Lord Chancellor recall that the former Lord Chief Justice and the current Lord Chief Justice, both acting on behalf of the Civil Justice Council and the civil justice review, raised strong objections to the civil courts making that recovery on two grounds: first, there was a failure to recognise the collective benefit in the administration of civil justice and, secondly, it seriously weakened access to justice.
	Secondly, does the Minister recall the decision of the Divisional Court in 1998—Queen's Bench 575, Queen v. Lord Chancellor, Ex parte Witham—in which, in a very full reserved judgment, Mr Justice Laws said:
	"Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically—in effect by express provision—permits the executive to turn people away from the court door".
	My final question—

Lord Ezra: My Lords, is the noble Baroness aware that there are more 5 million homes, or 30 per cent of the total private housing stock, classified as non-decent under the Government's own classification, and that the bulk of these are deficient in adequate heating and insulation? Will the noble Baroness indicate how soon the Government intend to put right this glaring deficiency? Will she give an assurance that if householders decide to improve their homes, and particularly their heating arrangements, they will not be penalised when council tax is eventually revalued?

Baroness Andrews: My Lords, the noble Baroness has interpreted me correctly. I think she is talking about the Housing Market Renewal Programme. By next March we are planning to deliver 21,000 refurbished homes and 3,000 new homes; 10,000 houses will be demolished as part of that programme. The emphasis is on refurbishment; demolition is never the first or only option. If it is an option we require that the people who are affected to be properly and fully consulted because it is a very serious decision for them.

Baroness Andrews: My Lords, I know that this is of interest on the Liberal Benches, but such a broad-based reduced rate for all domestic repair work would not be efficient or well-targeted. We have chosen to introduce more targeted reduced rates in support of regeneration and domestic energy efficiency objectives, such as residential conversions that create new homes through the better use of existing housing stock and the renovation of housing that has been empty. I am afraid that I will have to disappoint the noble Lord at the moment.

Baroness Morris of Bolton: My Lords, I thank the noble Baroness, Lady Ashton, for the full and frank meeting that we had last week; I am especially grateful to her for the mountain of extra reading that she provided. I also thank the noble Lord, Lord Adonis, for his detailed letters following Committee stage. With Amendments Nos. 1 and 8, we return to the lively and important debate that we had in Committee. Our Amendment No. 18 addresses the crucial importance to children of their extended family.
	"Both parents are equal and both should continue to have a meaningful relationship with their children following separation, so long as it is safe and in the child's best interests".
	Those are not my words but the view expressed by the Government in their Green Paper on parental separation. Yet the reality for too many parents is that they face too many battles within our family law system to achieve the positive outcomes that they so desperately want for their children. That was never the intention of the Children Act 1989. In his opening speech on that Bill in your Lordships' House in December 1988, my noble and learned friend Lord Mackay of Clashfern, in his valued role of Lord Chancellor, said:
	"The Bill will, in particular, establish a framework of rights and responsibilities with which to see that children in need receive the care, upbringing and protection they require, and that parents and others with an interest in the child can play a full part in those crucially important decisions".—[Official Report, 6/12/88; col. 496.]
	The intention of the Bill was to take the rancour out of proceedings and to encourage both parents to share in their children's upbringing even after separation or divorce. But as I said in Committee, over the weeks and months since Second Reading we have built up a picture of an outdated family law system that leaves the impression that if you get the best lawyer you can have the house, keep the kids and airbrush the non-resident parent out of your life. Many professionals in the family law world now think that the pendulum has swung too far. So we have retabled our amendment on the legal presumption of co-parenting. I can fully understand why there is anxiety at that. There is a concern to prevent any weakening of the fundamental principle that a child's welfare will be the paramount consideration. Not only do we understand, but we share that anxiety and it is not our intention to weaken that fundamental principle in what we propose.
	What we propose is entirely consistent with that paramount consideration. Our amendment springs from our belief that where safety is not an issue, a child has a right to a full and meaningful relationship with both his or her parents. My noble friend Lord Howe and I would not stand here and move our amendments on co-parenting and reasonable contact if we thought for one moment that we were putting one child in danger. It is for that reason that the safety side of this debate is so crucial and why we have tabled a robust amendment on this issue.
	Amendment No. 1 is also about the responsibilities of a non-resident parent. A good and loving parent is no less that after the breakdown of a relationship and separation. A good and loving parent is therefore entitled to the fullest part in the upbringing of his or her child as is possible. Such a parent is entitled to the knowledge, the hope and the security that this amendment would bring—that there is a presumption that he or she will be able to discharge their parental responsibilities toward their children, a presumption enshrined in statute, and in a way which would require a court in each case to give clear reasons why a parent is to be restricted or denied the exercise of parental responsibility. We cannot see how this is, or should be, controversial.
	Clearly the presumption which we propose would be displaced if a contrary reason was shown. I shall take an extreme example. No one would suggest that a persistent and physically or mentally abusive parent would enjoy substantial, or indeed any, contact. In such a case, the safety of the child is a real issue. The very behaviour of such an inadequate parent could of course amount to a contrary reason. The behaviour of such a parent would demonstrate an inability to exercise parental responsibility, which would either restrict or deny that parent any involvement in parenting whatsoever.
	While we say that our amendment should not be controversial it clearly is. There are those who think that we want to tear children down the middle. As the Minister stated in Grand Committee,
	"calling for a presumption of full and equal involvement by both parents in the upbringing of their children after separation undermined the paramountcy principle".—[Official Report, 11/10/05; col. GC 7.]
	I will repeat what I said at Second Reading and in Grand Committee. Co-parenting is not equal parenting in the way the Minister continually seeks to describe it. We do not see children as a possession to be shared out like a record collection. This amendment simply recognises the benefit to a child of a meaningful relationship with both his parents. This is a fundamental right of the child.
	There are other benefits too. As I was driving to the House last Monday, throughout the morning Radio Five Live was broadcasting a piece about the failure of the Child Support Agency. As I heard the piece for about the fourth time, I could not help thinking that if parents were obliged to maintain some link for the sake of their children then financial problems might not be quite so bad. Later that day, while researching something for this Bill, I came across an article from 27 January 2004 on the Times online. It was an interview with David Levy, president of the United States Children's Rights Council who was over here to discuss shared parenting. He said that the benefits of shared parenting were not just in fewer costly disputes going to court, but in increased child support payments and the Consensus Bureau statistics showed that fathers with shared parenting rights paid twice the amount that fathers with no contact do.
	There are also controversies about the amendment. Others ask why we press on with it when, within the present statutory framework, a court is able to—and courts do—take account of all parties including the non-resident parent. Why muddy the waters with the amendment? We all know that, when relationships break down, there is often bitterness—even hatred—between fundamentally decent people who carry the scars of emotional battles, will not forget, and all too often cannot bring themselves to acknowledge that their former husband, wife or partner should have any contact with their children. Any child is not only entitled to the fullest possible access to each parent, whatever the residual bitterness between them, but to each child's family—to feel a full part of that family. That is a privilege that should not be lightly denied.
	A separated parent should not have to prove a right to contact, nor have to prove to a court's satisfaction the extent of that contact. Parents accepted as fit—as good and loving parents—during their relationship do not, whatever the issues between them, become unfit on separation. The amendment recognises that and requires as full and equal an involvement in parenting as possible. It is only if that presumption is displaced on the balance of probabilities that, in the interests of the child, a parent will be denied responsibility for the upbringing of the child. That is right and fair. The principle demands statutory force, to the mutual benefit of children and their separating parents. The signal will be clear. The best parent for a child is both parents.
	We have tabled Amendment No. 8 because it is important that the contact that a child has with his both his parents is not only reasonable—my noble friend Lord Howe will talk about that shortly—but frequent and continuous. I cited the case in Committee of a mother who, despite being in receipt of two contact orders, had been to court 35 times and spent £70,000, but still did not see her sons. After such a gap, she fully realises that the judge will have to possess the wisdom of Solomon. A recent IPPR pamphlet, Daddy Dearest?, cites research that shows that contact needs to be designed in such a way that father and child regularly experience a range of activities together—bedtimes, mealtimes, watching TV, doing homework, trips out, "hanging" in, and visiting friends and family. All that is important because, once a parent is disempowered, the links begin to unravel.
	That leads me to Amendment No. 18 on the desirability of contact between the child and his extended family in the absence of good reason to the contrary. The group that we really have in mind is grandparents. At Second Reading, I described them as,
	"unpaid childminder, cook, taxi driver, nurse, marriage guidance counsellor and overdraft facility. And yet, overnight, their relationship with a much cherished grandchild can be ended".—[Official Report, 29/6/05; col. 255.]
	They are the innocent party in the whole proceedings. A project funded by the Department of Health between 1996 and 1999 called Care and Family Life in Later Childhood found that grandparents emerged as important figures. They were considered by children to be important in symbolic, practical and expressive ways. Children also held their aunts and uncles in high regard, especially their blood-related ones. The family is the most immediate and important group within which people share responsibility for one another's well-being. It is the very foundation for the good and just society that we all desire.
	It is time for the rhetoric to stop. We need radically to reshape our family law system. We need to effect a culture change in attitudes to parenting, and to use legislation to send an important signal that extended families matter, and that the best parent for a child is both parents. I beg to move.

Baroness Walmsley: My Lords, I shall speak to Amendment Nos. 11 and 12 in my name in this group. First, I will not be in a position to support the amendments of the official Opposition in this group today. That is not because I do not think it is highly desirable to have a sensible and clear definition in statute of the fact that children should have reasonable contact with both their parents. It is a good idea to have something very clear. If a couple go into their solicitor's office and say, "What does the law say about this?", the solicitor will not be able to easily demonstrate what the law says about it if he has to refer to half a dozen law books and pull down several cases, which is what the noble Lord, Lord Adonis, appeared to be suggesting in Committee. It is much better if we have a clear statute so that people can understand what the law says. The very fact that you have case law does not preclude putting something clear in statute. After all, there was an offence of theft long before theft was clearly defined in statute. Unfortunately, we do not live in an ideal world. In an ideal world I would be able to support amendments like my own and vote on them, and like some of those of the official Opposition today. But we do not live in an ideal world and in real politics one sometimes has to prioritise.
	Unfortunately, the issues about child safety will be debated further later today. My priority is the welfare of the child—to protect and make sure children are safe. My second priority is to get dissenting couples out of the courts and agreeing with each other; to fulfil their responsibility as parents together by agreement; and to remember that they may not be married any longer but that they are still parents and the child's interests must come first. That is my second priority and that is why I shall be promoting our amendments on mediation very strongly.
	My third priority is to get something into statute, which does not have the danger of overcoming the presumption that the child's welfare has to have absolute primacy. So, I will not support Amendment No. 1, even though about a year ago in the House of Commons, my honourable friends in another place were able to support an amendment to the Children Bill. Unfortunately, a very paltry amount of time was given to that amendment, as so often happens in another place. My honourable friend, the Member for Somerton and Frome, said:
	"It is a great shame that we do not have sufficient time to explore the issue properly but in stating clearly that the child's welfare is paramount—the honourable Gentleman [Mr Dominic Grieve] has done so without equivocation, for which I am grateful—and in putting forward a proposal that one doubts will take us further than case law in terms of its effect.—[Official Report, Commons, 2/11/04; col. 233.]
	On 13 December 2004, Members of the House of Commons were able to debate at greater length another amendment put forward by the official Opposition. Again, my honourable friend, the Member for Somerton and Frome said:
	"The timing of this debate is unfortunate, as we have not yet had responses to the Green Paper, which is a serious piece of work and deserves our proper attention, and because the Select Committee on Constitutional Affairs, so ably chaired by my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), is even now taking an abundance of evidence and is yet to reach conclusions. His plea to both sides of the Chamber not to close down options until that process was complete was entirely appropriate. Sadly, it went unheard by those on both Front Benches.—[Official Report, Commons, 13/12/04; col. 1471.]
	My honourable friend went on to say that he agreed with many things in the Official Opposition's Motion. He also criticised a great many things. Ultimately, he advised his honourable friends to support it. He said:
	"I will advise my right hon. and hon. Friends to support the Conservative motion today because there is more in it that we support than we reject, notwithstanding my trenchant criticisms of some aspects of it. I will reject the Government motion because it smacks of self-congratulation and I do not believe that they have got it right".—[Official Report, Commons, 13/12/04; col. 1476.]
	My honourable friend was so hesitant because the Constitutional Affairs Select Committee was taking evidence at that time. One rather significant thing happened: the Solicitors' Family Law Association changed its position between its written evidence and its subsequent oral evidence. That was reflected in the Select Committee report published on 2 March. It stated:
	"We also received evidence from witnesses who pointed out the risks inherent in forcing separating couples to share contact in all cases, because of the prevalence of domestic violence and the risks to children".
	Initially, a statutory presumption appeared to have the backing of the Solicitors' Family Law Association, which had commented in its written evidence that it believed that there should be a statutory presumption that children should have contact with both parents post-separation unless there are reasons that militate against that, such as safety concerns. During our oral evidence session with the judiciary, difficulties were identified with that proposal. A potential compromise was identified. Dame Elizabeth Butler-Sloss commented:
	"we can only have one presumption that the welfare of the child is paramount. If you have two presumptions, which one takes precedence?".
	I have very much taken to heart the words of Dame Elizabeth Butler-Sloss. The amendments to which I shall speak in a moment are, I hope, worded in such a way that they do not take precedence over the primacy of the welfare of the child.
	The Select Committee's report continues:
	"In oral evidence from the legal profession it emerged that this compromise had support. Mr Christopher Goulden who appeared on behalf of the SFLA stated that:
	'I have to deviate slightly from the SFLA line on [the proposal for a statutory presumption]. We have had subsequent discussions about that. I do not think that that is as well put as it might have been, with all due respect to my organisation. I think a better way would be perhaps to follow what the President said which is to have it as part of the welfare check-list and then it would get over that problem of there being, as it were, two conflicting presumptions. There is nothing wrong with having a presumption which is rebuttable, as was the recommendation in our written evidence, but as long as it came in perhaps by means of being part of the welfare check-list' ".
	We will come to the welfare check-list later.
	I cannot support the amendment proposed by the Official Opposition because I believe that it is too prescriptive. My honourable friends in another place agree that our position has moved on, given the evidence and the report of the Select Committee and given what I have heard during our debates on the Bill from many concerned organisations. In an ideal world, court systems would be robust enough to protect every child. It would then be safe to put a rebuttable presumption of reasonable contact into statute.
	It is an absolute disgrace that we are not able to do the right thing today because the Government have not given proper resources to CAFCASS and have not ensured that statute on the protection of the child is as robust as it should be. I hope that noble Lords will listen carefully to the suggestions on that front to be made by the noble Baroness, Lady Thornton.
	The second reason why we cannot support Amendment No. 1 and would prefer our amendments is that we think that they are better. For example, a statutory presumption regarding the exercise of parental rights, as set out in Amendment No. 11, raises a presumption for all separating parents that they should make arrangements that enable the child to spend time and have a continuing relationship with both parents unless there is evidence that that would be contrary to the child's best interest. I ask noble Lords to notice that our amendment is rebuttable if there is evidence to the contrary. That would apply whether they agree arrangements privately, invoke mediation or go to court, but there will always be cases where the parties do not agree and end up in court. In those circumstances, it is important that the strong message from research that the welfare of children is best served by continuing to have a relationship with both parents is well understood. It has been well established in case law. The amendment strives to send that clear message in primary legislation so that it is not just embedded in case law and, as I said, inaccessible to the majority of litigants. The law would reinforce the message that parents should find a way to enable each other to remain involved with the child. Members in all parts of the House want to ensure that that happens. On that, I agree with the noble Baroness, Lady Morris of Bolton. Of course, it has to be subject to any safety considerations.
	The effect of my amendment would be that those who are negotiating in the shadow of the law, whether on their own, in mediation or through negotiations with solicitors, will be clearly aware of the principle that the court will apply if they cannot reach agreement and have to invoke the jurisdiction of the court. That principle in primary legislation will also underpin the suggestions made in the guide, What to do if you can't agree, which accompanies the parenting plan and gives examples of how other parents have resolved differences in typical scenarios that arise on separation. However, the amendment does not attempt the impossible task of being prescriptive about what arrangements the court will order if it has to become involved because they necessarily vary according to the circumstances of each case, as the noble Lord, Lord Adonis, pointed out to us several times in Committee.
	I am aware that it is heresy to talk about amending Section 1 of the Children Act. However, it is not a question of amending the substance of the paramountcy principle. I would not have tabled an amendment to do that. Rather, it is a question of amplifying how the Government and the courts view child welfare when parents separate. The Act has been amended before in respect of issues that needed to be considered in relation to a child being placed for adoption, for example, by Section 1(4)(f) of the Adoption and Children Act 1989. That is why I had the temerity to suggest it today.
	Amendment No. 12 is somewhat different. It is about parental responsibility. The current publicity from fathers' groups about 50:50 parenting raises important issues. As we try to do the right thing—all noble Lords in the House are trying to do that today—those issues need to be addressed. However, in our view, the solutions are not what fathers' groups would want. It is clear that the power dynamic between the parties is frequently defined by which parent has "got" the children. It is often, but not always, the mother. If the parties have been separated for some time, the status quo of the arrangements made immediately after separation has become entrenched, which makes it difficult for parties to change the arrangements without causing further disruption to the children. None of us wants to do that. In some, but not all, cases, that can create a power imbalance between the parties when it comes to renegotiating the arrangements.
	Following the recent amendment of the Children Act 1989 by Section 111 of the Adoption and Children Act 2002, most parents will have parental responsibility for their children, but the law needs to define in statute how that parental responsibility should be exercised post-separation, so that the law encourages co-operative parenting—hence Amendment No. 12. It is inadequate to leave it to case law to define parental responsibility and how it should be exercised post-separation. The law should be clear and unambiguous to separating parents so that one cannot act unilaterally on big questions concerning the raising of the child, unless he or she is authorised to do so by the court.
	Those are the reasons why we think our approach is better. It is less prescriptive, and it allows the courts to have their prerogative of looking at the circumstances of a case. I do not intend to vote on the amendments today, because my priority is to look at what we can do to strengthen the Bill. I hope that the Government are listening carefully to the concerns that have come from all sides. The safety of the child must come first, but we must strengthen the arrangements for couples to mediate, to do it effectively and to do it before they go anywhere near the doors of the court.

Lord Northbourne: My Lords, I support the noble Baroness, Lady Walmsley: the message that we send to parents is of huge importance, and that message will not get through if it is buried in case law.
	I added my name to Amendment No. 1 because I believe the principle that, wherever possible and safe, both parents should continue to be as fully and equally involved as possible in the parenting of their child. The object that we all want to achieve—in Grand Committee there was huge agreement about the outcomes that we wanted, although there was significant disagreement on the means whereby those outcomes were to be achieved—is that a child's family life and his trusting and loving relationship with his parents should be as little disrupted as possible. As we all know, that is most likely to happen if future parenting arrangements are worked out, where possible, amicably between the parents. In order to achieve that, not only do the courts need to be clear on what they think and what they mean, but separating parents also need to be clear about what the courts mean and what they are likely to do.
	I have one reservation on Amendment No. 1—the words "the presumption". I should like to be assured that that presumption does not in any way intrude upon the paramountcy of the welfare of the child as set out in Section 1 of the Children Act 1989. In that context, I should like to quote from the Solicitors' Family Law Association, to which the noble Baroness, Lady Walmsley, referred, because I think that it is extremely relevant. In a report dated June 2004 entitled Practical Steps to Co-Parenting, it states:
	"The Association was in favour of a legal presumption of contact for both parents, but with the proviso that the child's best interests should remain the paramount consideration in any dispute:
	'A presumption, enshrined in law, that children should have an on-going relationship with both parents unless this would not be in their best interests. This should make it crystal clear that a child's relationship with a parent is not dependent on the wishes of the other parent. The child's best interests should remain the paramount consideration in any dispute. This principle is fundamental and should not be diluted by pressures to deliver rights for either parent' ".
	That is all that I need to say on Amendment No. 1.

Baroness Howarth of Breckland: My Lords, I understand absolutely the sentiments behind the amendment. I believe that all sides of the House have the interests of children securely at heart, I simply think that we come at the issue from different positions. I shall outline why I cannot support the amendment.
	First, let us remember that we want all children to live in stable, loving families with both parents. We all want that to happen. When problems arise, we want them to have access to help that brings them back to that stability and contact when that breaks down. We want to think about the difference between safety and safeguarding. I know that we shall be talking about safety later on, but I want to talk a little about safeguarding.
	Safeguarding is to do with the whole development of the child. A presumption that a child's welfare is best served through residence with his or her parents and the concept of equal involvement in the difficult situations we are dealing with is unrealistic, unhelpful and in my view potentially dangerous. That, if you like, is at the other end of the spectrum when we are talking about safety.
	Many of the problems that I see regularly in the court do not necessarily involve reasonable adults talking about safety, but unreasonable adults. All of us can be unreasonable, so there is nothing strange about people who find themselves in such situations, when powerful emotions are evoked. The most powerful emotions can be felt when people who said that they loved each other and have had children split up and face all the difficulties involved in breaking up. Noble Lords who have had that experience will know the power of those emotions, and those who have not have not will know what it is like to have normal household rows and what sorts of emotions are involved.
	In such situations, we are often dealing with families who also have other difficulties. Research has shown that they are families at the end of the spectrum—not all of them, but many of them—where there are other difficulties. Let us remind ourselves that most families find a solution to contact themselves. Most families are able to find help if they actually need it. Of the ones who come to court, CAFCASS can often find ways to solve the problem before the case goes before a magistrate or judge. A number of our projects are proving extremely successful throughout the country in doing that. However, 1 per cent of cases end up with no contact, and I see many of those cases.
	The child's needs must remain paramount, and our courts and staff should put them first. The noble Baroness, Lady Morris, talked a lot about the rights of parents. Yes, I believe that parents have rights, but the matter goes above and beyond the rights of parents who have decided to separate and have got themselves into such difficulties and have not decided that sticking together for life for the sake of their children is what they intend to do—there are many families who decide to do that, and I admire them. Those rights are not the ones that we should consider. The paramount responsibility and right at that moment is the need of the child who comes before the court. As I said, I believe that the child's needs are met by contact with both parents when possible. In terms of their development, even when children are not at risk in a technical sense, there will be times when contact will be very difficult to decide on. I have had CAFCASS officers and judges distraught because they can see the need but find some cases difficult to take through.
	I should point out again that we are not talking about situations in which a contact order has been made and then broken or that we believe that the resident parent is being unreasonable. In those situations, we are dealing with the provisions about enforcement. Again, I know personally and professionally situations in which there are unreasonable parents—very often mothers but sometimes fathers—who, for their own reasons, not for the value or needs of the child, do not wish the child to see the other parent. That is when we need enforcement; that is when judges are asking us to take further action. But that relates to another part of the Bill; it does not relate to the part that we are discussing.
	A massive amount of scarce professional time, including court time, is used when judges and CAFCASS practitioners try to reason with parents who are hostile to each other. They must at the end of the day be able to focus on the one thing that matters and not be distracted by other issues such as terms like, "reasonable contact" or "the presumption of contact". We have seen in the report from Her Majesty's Inspectors that that can affect the judgment of staff—and I believe that that happens. I welcomed enormously the speech made by the noble Baroness, Lady Walmsley, whom I have always seen as a champion for children. It was heartening to hear her talking about the paramountcy of children's welfare. I hope that she does not believe that it is because of staff attitudes that there are difficulties. The staff are seriously influenced by the culture that we create legislatively, in our newspapers and for certain groups who have made their life misery. That has been the difficulty.

Baroness Pitkeathley: My Lords, the noble Earl quoted research which showed that, as the noble Lord, Lord Northbourne, picked up, the courts were inclined to take the word of the resident parent against the non-resident parent, but many of us would say that that research was selective. We might also quote the recent HMICA report on domestic violence, which showed that, on the contrary, the presumption was rather too much towards assumption of contact. My real difficulty with the noble Earl's amendment is that it is a mistake to assume that you can have a once-and-for-all decision about what is reasonable contact.
	I must speak up for CAFCASS workers who work with very difficult parents, not for weeks or months but sometimes for years to establish reasonable contact. I have sheaths of letters that I could quote to your Lordships; I will spare noble Lords that, but I shall quote one, from a parent who says:
	"I know now",
	at long last,
	"that this case is not about what either parent wants, and is all to do with the needs of the children, but it has been my deepest wish that my children would one day see my home and be a part of my life, and it has taken me years to achieve this.
	To me the weekend was a huge success and I must give credit to the children's mother for her complete compliance with the court order and giving every chance for the weekend to work".
	Those are parents who until now could not even be in the same room with each other. That kind of work goes on all the time. It seems to me, however, that the amendment tabled by the noble Earl starts and stops with parents, whereas the work done by CAFCASS with resident and non-resident parents starts and stays with the individual children. Of course there is a get-out clause in the amendment, unless a good reason to the contrary is shown; but there are often good reasons, and the problem is that in my view the amendment would weight the legislation and legal advocacy too far towards the parents' rights and not enough towards the children's rights.

The Earl of Listowel: My Lords, I thank the noble Earl, Lord Howe, for putting the case so eloquently for his amendment. As Anthony Douglas, the chief executive of the Child and Family Court Advisory Support Service, has said to me, 30 to 50 per cent of these cases are fairly straightforward, and the rest are complex cases verging on public law. As I said before, there is a balance to be struck between the hell of a child not having reasonable contact, so he cannot be read a bedtime story by his father, and the other hell of him or her being caught in a continual conflict between warring parents. It is a difficult balance to get right.
	Several of your Lordships have referred to the HMICA report. In chapter 3, regarding domestic violence, it says:
	"Practitioners and managers told Inspectors that, whilst they may not always agree with it, private law practice is driven by what is known as 'the presumption of contact' . . . Inspectors were told by practitioners that 'the presumption of contact is so strong. It makes it difficult to challenge and we don't give adequate attention to the continuing impact of the abuse on the child'".
	This is a report on domestic violence, but it findings are relevant to a wider group of families in these proceedings. My assessment of the report is that it underlines that CAFCASS, as the noble Earl has said, is faulty and struggling in several ways. I was glad that the chief executive, Anthony Douglas, acknowledged the strength of the report in this chapter, and that there is a lot of work to be done at CAFCASS.
	There is such a strong presumption of contact that not only the safety of children but also their welfare is being put to one side, in a drive to get contact between parents as far as possible. There is a balance to be struck but the report suggests that the balance is not being struck and that it is going too much in one direction. I am concerned that the amendment, with its laudable aims, would push the balance too far in the wrong direction at the current time and in the current context. I look forward to the Minister's response to the amendment.

Lord Northbourne: My Lords, it defeats me to understand how I can press an amendment to an amendment that does not exist.
	I welcome the support of the noble Baroness, Lady Pitkeathley, on the importance of child-centredness, and that of the noble Baroness. I shall not press the amendment this afternoon, but if the noble Earl succeeds in his amendment, or perhaps redrafts it, I may come at it again to attempt to amend whatever he may have done at that time. In the meantime, I beg leave to withdraw the amendment.

Earl Howe: My Lords, as I made clear, I am not arguing against the paramountcy principle. In many cases there is no question of violence or risk to the child. but the non-resident parent cannot get the court to agree to extra contact. The reasons adduced are not what most people would regard as substantive.
	The noble Baroness, Lady Ashton, resisted the idea that we could have a countervailing presumption to the paramountcy principle. If Ministers are really saying that, why on earth has the noble Lord, Lord Adonis, devoted considerable effort to setting out, in Grand Committee and in correspondence, the case law that clearly shows that there is already a presumption countervailing the paramountcy principle. It is a presumption of contact—not "reasonable contact", however. That presumption appears to exist perfectly happily side by side with the paramountcy principle. The courts have no difficulty operating on that basis, and the legal advice that I have received is that they should have no difficulty operating with a presumption of reasonable contact provided, as I propose, that that presumption is treated as subordinate to the paramountcy principle. Apparently, according to the Government, we can have a presumption in case law, but not in statute. I frankly find that incomprehensible.
	It was said by a number of noble Lords, including the noble Earl, Lord Listowel, that they were worried that a presumption of the kind that I am proposing would increase the risk of harm to a child. That is not the experience in Florida, and nor would it have been with the original early interventions project, which would nip in the bud any genuine risk of violence by having an early hearing on that issue. I was pleased that the noble Baroness, Lady Howarth, agreed with me on that point. The Government really cannot dismiss out of hand the success secured by other countries that have adopted early intervention principles; the track record over more than 10 years is proven. I have read the critical passage of the HMICA report, and I have read a great deal of the rest of the report.
	One reaches the conclusion that it is not the presumption of contact that is wrong but the lack—if I may say this without sounding too critical—of proper procedures to evaluate allegations of violence. I am afraid that reading that report did not put me off my stride. The Minister does not accept that the courts act unreasonably; indeed, what she said carried the implication that everything that the courts did was inherently reasonable because they had to act in the child's best interest, and that every order is in the child's best interests irrespective of what it is. That is an extraordinarily Panglossian view of the world, which really does not bear close scrutiny. The Minister admits that we lack detailed statistics of what the courts actually do in contact cases, but those statistics that we do have are apparently dismissed as of no account. I emphatically cannot go along with that.

Baroness Ashton of Upholland: My Lords, I was not so much talking about statistics as about looking at what happens in the process. The noble Earl would accept that neither of us should change the law on the basis of anecdotal evidence.

Earl Howe: My Lords, we should not change the law on the basis of anecdotal evidence, strong as that is, but the point is that the Napo survey provides us with our first, revealing glimpse of the decisions being taken by courts. If the statistic that I quoted were substantially less than the figure that I gave I might not be so worried, but I was very shocked.
	We need to draw this to a conclusion. The Government say that they believe in the value of a meaningful relationship between the child and both his parents, and they say that the way that the courts intervene currently does not work well, but they do not take the obvious next step, which is to change the way that the court system works. They said in the Green Paper that they would do so, but instead they are tinkering at the edges of the existing system, they resist any notion of court-backed guidelines and they repeat the argument that every case is different. It is completely baffling to me why they should be arguing against themselves. There is no doubt in my mind that technical defects or not—and those can be put right—this is an issue on which it is appropriate for me to seek the opinion of the House.

On Question, Whether the said amendment (No. 2) shall be agreed to?
	Their Lordships divided: Contents, 93; Not-Contents, 151

Baroness Morris of Bolton: My Lords, in moving Amendment No. 9, I shall also speak to Amendments Nos. 10 and 29. In Grand Committee, we moved the amendments separately as we felt that full and thorough debates on the issues were needed. We were not disappointed. However, in practice, the amendments are intertwined. Amendment No. 9 allows the Secretary of State to issue guidance for separating parents called parenting time plans. They are not the same as those currently proposed by the Government. The House will not be surprised to hear that they will be based on reasonable contact between both parents and the child. The plans would form the basis of negotiations. Given the countless cases that have passed through the family courts, it is possible to set out a range of circumstances that the courts would impose if parents were unable to reach an agreement.
	Around 10,000 judgments are made a year on overnight contact. Based on that, it should be possible to come up with a formula that says, "Overnight contact should be allowed to take place by X in determination of Y". Courts would take into account such things as religious holidays. I had a number of meetings with religious groups, and one recently with Rabbi Livingstone. A number of faiths, particularly the Jewish faith, are concerned that, where there is a right of passage for a young man, it is important that he has his father to support him through that wherever possible. The parenting time plans could take that into account.
	Such plans work well in a number of other countries. I stress that they would be court-backed and prepared by child development experts in conjunction with the judiciary. Our plans differ from those proposed by the Government in that the government plans require the warring couples to sit down and write a series of mini-essays together on everything from GCSE choices to Saturday jobs. Although those are important issues, the way in which they are introduced at such a sensitive time can only fuel resentment. Even the most happily married couple might struggle to come through the marathon of the Government's proposed plan intact. Parents in a fragile state want some certainty and guidelines, and our plans would help.
	In Amendment No. 10, we propose that couples seek dispute resolution and, if needed, mediation before they go to court. Professionals trained in mediation would make parents aware of the emotional and financial costs of resorting to court. Court-approved mediators and facilitators would provide a stark explanation of the effects on the well-being of children, the length of time that litigation can take, and the financial implication to parents. They would set out the parenting time plans.
	We are clear that some parents may be able to sort out their differences through dispute resolution, but some scars may be so deep and some enmities so entrenched that mediation is the answer. Whatever is decided at that first meeting, it must be mandatory, otherwise the very people whom we need to help will not go. Resolution—previously the Solicitors' Family Law Association—believes that, for couples who cannot reach agreement on their own, there should be a swift and effective dispute resolution process, and that an application to court should trigger a compulsory intervention appointment.
	A solicitor who specialises in family law said to me, "I can understand the argument about why clients' attendance at mediation should be voluntary, and when it works it works well, but the empirical evidence suggests that these cases are few and far between". He went on to say that, "making mediation compulsory would be one way, arguably the only way, of addressing the issue". Relate says it has no concerns about these meetings being compulsory. Its experience shows that people sent to Relate, at first probably reluctantly, quickly settle into a good relationship and usually feel very pleased they were sent.
	As I said in Grand Committee, this amendment sends a clear message that when your relationship has broken down and children are involved, before you go your separate ways, you have an obligation and a duty to face the facts as they are and not as you would have them, and for the sake of your children, to sort it out.
	Both the amendments I have spoken to would come together in our early intervention pilot. At first we did not think you could put a pilot into primary legislation and then realised there were pilots in the Housing Bill and one in a current electoral bill. I went into the history of the aborted early intervention project at length in Grand Committee. I do not propose to rehearse the details again today, except to say that the Government had handed to them a scheme designed by lawyers and members of the British judiciary which would work in the English legal system.
	I do not pretend to be a parliamentary draughtsman and I am sure this amendment is deficient in many ways. I suggest to Ministers that they have a thorough search of their respective departments. Somewhere, probably gathering dust on a shelf, is a properly thought-out pilot scheme. When they find it, please could they dust it down and take a good long look at it, as they might realise they have the answer to many of their problems?
	In Grand Committee, I gave the last word of the amendment to Dame Margaret Booth, a retired High Court judge, who, speaking at a reception in Lincoln's Inn in May 2002, to mark the publication of the early interventions report said:
	"Looking back at the Conference, perhaps the most striking point is how much we have to learn from other countries and their pre-hearing Information and Mediation approach, and from their consensus—sometimes their statutory definition—of the quantum of contact.
	"It is a shame that our country does not easily learn from what other jurisdictions have done successfully for so long. In this matter, we are years behind. I believe profoundly that the time has come to remove our blinkers".
	I beg to move.

Baroness Howarth of Breckland: My Lords, I will not speak about parenting plans, but I want to say a quick word about mediation, because it is a word that is banded out and has many meanings depending where you stand on the professional spectrum. There is a real misunderstanding about the role of mediation as a cure-all, and this persists and is apparent in many of the amendments. It might well be mediation-plus, and I am joined with this by many people in CAFCASS. I apologise to the House for failing to declare my interest in CAFCASS.
	Traditional mediation—which I understand as a professional involved in a range of these issues—would make little dent on the families we work with. That is the view of the CAFCASS chief executive. Our models of dispute resolution increasingly involve the children, facilitated discussions and the use of therapeutic mediation models, such as the Relate model, but these are active and assertive rather than the traditional passive model. I have a real concern that we get into the right kind of pilot models and not into models that will not work. I am sure early intervention is the right process. There are a number of models on the shelf—one of which I am very familiar with—which might well be looked at again. But these are about practice rather than legislation. Your Lordships have great faith in legislation—we have a lot of it. I hope that we can also measure implementation because that is what matters.

Baroness Ashton of Upholland: My Lords, I seem to spend a lot of my life on legislation. I cannot but echo some of the sentiment behind it. So, of course, we only put forward legislation that is vital, as the noble Lords will appreciate.
	I want to deal with these amendments in order. I completely understand the aim behind Amendment No. 9 but, for a number of reasons, I am nervous about it. The first reason is that I am never entirely sure that the best way forward is to have the Secretary of State give out guidance in this area—not because we do not have magnificent Secretaries of State but because there is an issue about how much guidance a Secretary of State should be giving to the courts. I am also nervous about prescription. While I take the point that has been made to me both inside your Lordships' Chamber and outside that although we go on about how every case is different, noble Lords then point to the similarities between cases.
	I asked the judiciary how they approach the issue. They say, "Of course the outcomes in many cases may look very similar because much of how we organise the lives of families with children who have broken up ends up looking pretty much the same". But you have to start from the court's perspective by saying, "This case is unique". In that way you can address the needs of the child and then look at the needs of the family from that unique perspective. So they are not actually contradictory. I believe that we should be nervous about prescription.
	I am also a bit nervous on the issue of who one consults in arriving at this set of guidelines. You only have to look at our debate today and the expertise in your Lordships' House, never mind outside, to see that there are very differing views. I am not sure how we would reach the type of consensus that we would need to have. We have looked at setting up the parenting plans and consulted on a new set of parenting plans. I would be very keen to discuss with noble Lords opposite on both Benches what we have come up with to see whether there are any changes that we might make to the parenting plans. I accept that the issue that noble Lords are concerned with is partly addressed by the quantity of information and the quality of advice and the quality of the work that we do beforehand. So I make the absolute commitment that we will come to noble Lords with what we are drafting.
	I take the point about filling in lots of things. But the purpose of the proposal is to get parents to think about different issues—such as whether your child should have a mobile phone, who is going to attend parents' evenings, and so on—and not just to get them to try to fill in all the information. However I take the point. I hope that we can have a really good discussion to see whether we can properly address those points. If noble Lords are willing to do that—as I hope they are—we will do that.
	We talk about jurisdictions. One of the difficulties which I think I have already indicated is that it is very difficult to get empirical research about what happens in different countries. We cannot find any research from other countries that shows the beneficial impact of parenting plans on the child's welfare; if anyone has any, we would be very grateful to receive it. We have sought such information from other jurisdictions and looked at many research bodies but we simply cannot find any. If there is any we would be very happy to examine it between now and the next stage. But we do not think that such research exists.
	A lot has been said about the Florida model, which I am not going to dispute works in Florida. Again, however, we do not have specific advice. As the Committee will know, the Florida situation is based on parents' rights and on children's welfare. That is the approach that they have taken and it is for them to decide what they want to do. Florida does not publish guidelines on contact.
	In her Private Law Programme in July 2004, the then President of the Family Division focused on early judicial interventions and the extension of alternative dispute resolution supported by Her Majesty's Courts Service and by CAFCASS. The consultation seeks to underpin that approach by looking at CAFCASS to frontload earlier interventions. So there is no dispute between us about the need to look at early intervention as the way forward. I agree with that. It is very important that people do not end up in court; hence the mediation issues. I also take what the noble Baroness said about the particular issue of, I assume, parental involvement in Bar Mitzvahs and Bat Mitzvahs. Perhaps we can have a think about that. I am sure that that would be taken into account, but I also take the point of religious groups in saying that there is an issue that we should think about.
	For those reasons, and with the commitment that we will bring forward the parenting plans to discuss with noble Lords in order to see whether we can improve them to achieve the objective at least in part, I hope that Amendment No. 9 will not be pressed.
	Amendment No. 10 requires the President of the Family Division to compile a list of mediators. Noble Lords will probably know that we have the UK College of Family Mediators. I am keen to involve it in what we do, rather than moving to create a different list held by the President of the Family Division—who I am sure would be absolutely thrilled to hear that we want him to add this to the list of things that he does. However, I am happy to talk to the UK college and to other mediator bodies about how we do this. I am not sure whether that would move into a regulation but I think that we could talk to them about issues of concern, if noble Lords would like to talk to me about that outside.
	The amendment includes a form of compulsory mediation. Noble Lords will know that there is a real issue in relation to Article 6 of the European Convention on Human Rights. In last year's judgment, Lord Justice Dyson said:
	"It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their rights of access to the courts"
	That would be contrary to Article 6 of the European Convention on Human Rights.
	There is also an issue about whether forcing people into mediation could add to the delay in getting them into court when that might be the best solution. The amendment does not allow for the fact that they might have been through mediation already which proved unsuccessful. I am always nervous about compulsory mediation, for two other reasons. First, in many cases which have become intractable there is a difficult relationship between the parties which may include either domestic violence or certainly intimidation and bullying. To suggest that they are able to mediate as equal partners is not necessarily appropriate. So I am not keen to look at that as an absolute. The Bill already allows the courts to order people to participate in the information sessions. The Bill also enables us to order them to undergo counselling. My experience of talking to mediation organisations is that they are nervous about compulsory mediation for the reasons that I have given. Moreover, the families often need much more than mediation; they need counselling. There is a longer-term issue that can be addressed in the Bill.
	I too am not going to go over the early intervention pilot. We will wait for the evaluation. I hope that my noble friend—it will not be me—will make that evaluation available. I think that it was a good pilot that achieved a great deal, although I know that noble Lords will take a different view. We have committed about £7.5 million over the next two years to support and develop child contact services. Without wanting to go down the route that is proposed by the noble Baroness, I should be keen to have discussions with noble Lords on how we might use some of that funding to develop services for the purposes that noble Lords are seeking to achieve in the amendment.

Baroness Howarth of Breckland: My Lords, I should probably have said all that I am going to say when I spoke about mediation. I have a great deal of sympathy with the noble Baroness's amendment, but I have concerns that I need to express. I am speaking as a practitioner, rather than as the deputy chair of CAFCASS, so this is a personal view. I am deeply concerned that when we are having discussions about mediation, we do not become locked in a series of activities that will be of no help to many families. The phrase "dispute resolution" is much better, and many of the families that we deal with understand the kind of intervention where someone is trying to talk with them round a table in a different way. I sat on the Select Committee and listened to associations dealing with mediation and the problem is that they are talking about a passive, non-interventionist type of mediation that will be very unhelpful to many of the families that cross the thresholds of the court and CAFCASS.
	I also want to express some anxiety about the way we move forward. It might be appropriate for me to do so here and on the record. At the moment, CAFCASS is engaged in a number of new programmes. We have cases being dealt with by dispute resolution and the number needs to be increased nationally because we are having enormous success. That is what is reflected in the Napo document. When we intervene, we are successful. We know that casework works. Mediation may not, but casework works in Staffordshire, Colchester, Leeds, Norfolk and many other places.
	I am anxious that the work is split between two major departments: DfES and DCA. With £7 million on the table and CAFCASS resources as they are, I make the point to the Minister that we are doing a great deal of work on a very under resourced budget. I had to make that point at this moment.

Baroness Ashton of Upholland: My Lords, I do not think that any noble Lord who has spoken is terribly far away from any other noble Lord who has spoken on this amendment. I accept that mediation is very important and can prevent people ending up in court, but I also accept that there are other methods and other players who need to be involved and who can also do a fantastic job in preventing that. I take the point about the voice of child perhaps being more easily involved through CAFCASS than it would be through traditional mediation methods. I have already indicated that we will think more carefully about the question of a register of mediators.
	As a Minister, I work in Europe on European civil justice and I know that within the European Union we are looking at the question of mediators and mediation. I need to think again about how we reconcile the different issues while not putting an onus on the president of the Family Division that I do not think would work.
	I have a slight difficulty because the amendment requires compulsory information sessions in every case. The noble Baroness, Lady Walmsley, says that the Bill already allows for these information sessions to be made compulsory in that the contact activities may include,
	"sessions in which information or advice is given as regards making or operating arrangements for contact with the child, including making arrangements by means of mediation".
	I do not want to put on the face of the Bill that this should be done in every case because it will catch cases where parents were able to reach agreement without needing mediation. Furthermore, it would not give the courts flexibility to decide that an information session was not appropriate in particular circumstances. I do not think that we are very far apart, but I do not want to go the extra mile and say that we should do this in all circumstances at all times.
	The difficulty with Amendment No. 15 is the European Convention on Human Rights. While I can see the logic of saying that no application can go forward unless a mediator has pronounced it mediation-unsuitable, it would be successfully argued that that would prevent access to the courts if a person were to refuse to undergo mediation. I do not think we could do that. If somebody did refuse to participate, it is, in theory, contempt of court. The reality is that if the court believed that an information session and mediation was important and that the parents had come because they wanted to sort out contact disputes, it would take very seriously the issue of whether somebody did not participate.
	Although on an individual basis I can see that this would not cost very much, in 2004–05 the cost of 14,355 publicly funded family mediation was £14.2 million. Each individual case is not very much money, but I do not have a back pocket with extra money that I could put into this for parents who might be profiled like me or other noble Lords, who could afford to pay and who should do so as part of the process of trying to sort out their contact arrangements. Although I take the sentiment very well, the reality would be different. While I have enormous sympathy with the amendments, I do not want to go as far as saying that we would do this in every case.
	New Section 8A provides that cases can only go forward after mediation, but we run straight into the difficulty that that would, in theory, deny people access to the courts, and cause me difficulties in the European Court. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Barker: My Lords, I apologise for my late appearance today. I had to be elsewhere earlier this afternoon. Amendment No. 14 concerns a matter we have not hitherto discussed. Its origins lie in our discussions in Grand Committee and those that we on these Benches have had with a wide range of practitioners. We did not consult CAFCASS but could have done so. In its report Every Day Matters it stated:
	"CAFCASS favours a strong expectation that parents, with support, will reach agreements about future arrangements for their children and it supports a shared parenting framework in cases where there is no indication of risk to the child. Contact levels should normally be substantial, including overnight and weekend stays, if a relationship between a child and his/her non-resident parent is to be maintained and properly developed. Having said this, continuity of care is important, especially for babies and very young children, and the needs of each child have to be considered irrespective of general policy positions".
	That report talks repeatedly and at length about the need to act quickly when people separate in order to establish patterns of contact and behaviour which are in the best interests of the child.
	The amendment seeks to do a number of things. First, it recognises that there cannot be a universally suitable set of contact arrangements. Every case and the circumstances of every family will differ to some extent and there is a wide range of contact arrangements, varying from very limited contact in some unusual cases to fully shared parenting in other unusual cases. Nevertheless, there is a reasonable contact arrangement pattern which suits the circumstances of many families where parents live separately, particularly where the non-resident parent is in full-time work. In answer to a previous set of amendments the noble Baroness said something similar. Typically the pattern involves staying access every other weekend, for up to half the school holidays and every other Christmas and Easter. In addition, weekday access one day a week is quite common. Different arrangements often apply when children are very young, particularly for babies or where one parent lacks the necessary skills to care for a baby.
	Some of the problems with the current law have been alluded to in other amendments. There is no statutory model to which parents can look for guidance on the structure they might choose to agree between themselves or what arrangements might be regarded as being fairly typical. Some resident parents discourage or oppose contact on the misguided basis that a child would be better off without it.
	Practitioners have told us that, when people separate, the issue of property and which parent has the house are frequently bound up with the question of who will have contact with the child. The lack of any default contact arrangements makes resident parents who are opposed to contact less amenable to advice about the likely outcome of a court application for contact. Some non-resident parents are discouraged from applying for contact in the face of opposition by a lack of confidence about the outcome of such an application.
	In the absence of a set of default contact arrangements, unless there is an agreement to vary them or an order of the court, a resident parent can impose his or her will on the non-resident parent, unless the resident parent makes an application to the court. While such an application is pending, there is a tendency for the status quo to become established in a way that not only may not be in the best interests of the child concerned, but which also may be difficult to change once the matter comes to court.
	Therefore, we seek a set of default arrangements which parents, when they split up, can access easily. The provision would be in the Bill rather than being buried in case law. It would urge them to reach a framework for contact which suits them. They can vary it. And it would be in the best interests of their child. Parents are free, if they wish, to agree any other arrangements they choose at any stage. The court will approach every application for contact on its facts, without any statutory presumption. So the paramount interests of the child in the particular circumstances of each case will continue to govern the court's decision-making.
	So, in summary, the amendment seeks to put in place an anticipated arrangement which separating parents will know about and which they can use to come to an arrangement which is in the best interests of the child. I beg to move.

Baroness Barker: My Lords, I thank the noble Baroness, Lady Morris, and the noble Lord, Lord Northbourne, for their support.
	The first point to make to the Minister is that paragraphs 2(b) and (3) of this amendment deal with precisely the kind of case that involves violent and abusive parents. This amendment seeks to ensure that parents who have split up are encouraged by seeing the law, without having to dig out parenting plans, good practice and case law, which says, "It is likely that in the case of your child the court may come to the following kinds of arrangement. You both have the power to vary that, in the best interests of the child as you see fit, but that is what is likely to happen". That gives a basis on which, where there is no issue about violence and where there is agreement, parents themselves can go ahead and make those arrangements at that very early point. That is crucial, in that it sets patterns of behaviour for later.
	The noble Baroness asked what kinds of variables there are. There are many: how old a child is; where the parents live; whether the child goes to school; whether the child has extra-mural activities on certain days or particular interests. We would know about all those issues because they are contained in the parenting plans. I therefore do not believe that there is a problem about that. The first part of the clause refers to establishing a range of contact arrangements. It tries to set a normative framework under which people who have to deal with such issues can begin to agree arrangements. I do not accept the noble Baroness's analysis that people in violent relationships will be forced into that situation. If she reads the amendment, she will see that, as with the rest of the Bill, there is within it provision for safety. We have not yet reached the amendment tabled in the name of the noble Baroness, Lady Gould. When we do, it will have our utmost support.
	It is not about compromising safety in any way. It is about encouraging that group of parents we have already identified during the course of our debate, who probably want to come to an arrangement and who, in all likelihood, once they have been through the court process, will wind up coming to an arrangement that perhaps could have been predicted from the start. It encourages them to do that from the outset, thereby avoiding much of the disruption to children's lives where one, usually the resident, parent holds out contact as a means of settling other issues involved in the process of splitting up. It also releases the time of the courts, and that of CAFCASS, to get on with the necessary work in other cases.
	That is what this amendment is about. I would like the noble Baroness to re-read it. I very much welcome the opportunity to discuss it with her, because I believe that this amendment will enable us to achieve what we are striving for; namely, to enable people to come to arrangements without in any way establishing principles and putting children's interests at a lower level. It does not do that.

Baroness Gould of Potternewton: My Lords, I very much appreciate the comments made by my noble friend Lord Adonis. They run very nicely with my own amendment and that of the noble Baroness, Lady Thornton. We appreciate the noble Baroness, Lady Walmsley, adding her name to the amendment.
	Amendment No. 27 in this group relates to risk assessment. Amendment No. 34 is a consequential amendment, which I understand is necessary to ensure that Amendment No. 27 is within the scope of the Bill. In Committee, my noble friend Lord Adonis felt unable to accept the proposal for the risk assessment checklist as had my noble friend Lady Scotland previously. It is therefore necessary to find some other means to persuade my noble friends on the Front Bench that a risk assessment can and should be built into the legislation.
	Everyone agrees—and it has been repeated throughout today's debate—that it is desirable for children to maintain contact with both parents following a separation. That requires not only quantity but quality of contact. Of course, shared parenting is desirable if the circumstances for it are right—circumstances that guarantee the safety of the child or children involved. That means that the welfare of a child must be paramount in family proceedings.
	I do not want to reiterate all the points that were raised in Committee, but it is important to put on the record once again why this amendment is necessary. Some of the points have already been heard as the debate has progressed. The link between domestic violence and child abuse is also not questioned. The reality is, as cited in the Green Paper on parental separation, that there are concerns about the safety of the child in 35 per cent of cases. Again, using the Government's own evidence, nearly three-quarters of children on the at-risk register live in households where domestic violence occurs. The noble Baroness, Lady Howarth said on 11 October that,
	"Some 66 per cent of the caseload of a CAFCASS officer concerns domestic violence",—[Official Report, 11/10/05; col. GC12.]
	but the courts still fail to recognise that that is the reality.
	The guidance for the courts on how to deal with contact applications, The Private Law Programme makes it clear that the judiciary regard cases involving safety concerns as "exceptional" and that is reflected in court practice. In 2003, 67,000 applications were made for contact under Section 8 of the Children Act 1989. Only 601 cases were refused—less than 1 per cent of all applications, which when taken alongside the figures of domestic violence and child abuse represents a significant institutional failure to protect. Nothing has changed, in spite of the introduction of gateway guidelines. In 2004, the courts granted 70,169 contact orders and refused contact in only 504 cases—again less than 1 per cent.
	Even when evidence is available, it is sometimes disregarded. Women's Aid reports that in 2003, a survey involving 178 refuge organisations found that 6 per cent knew of cases where contact orders had been granted to Schedule 1 offenders, and in some cases unsupervised contact was granted so there was no protection for the child at all. Dame Butler-Sloss said at the hearings of the Select Committee on Parental Contact:
	"We do not always know that they are Schedule 1 offenders at the time".
	This evidence shows that the family justice system does not have adequate proceedings for identifying high-risk cases and assessing and managing risk to ensure that contact is safe. That will not do. I was very interested to hear my noble friend earlier talk about looking at the system to see what is happening in the courts. That will be enlightening and interesting information.
	In Committee, I referred to the cases where some judges now insist CAFCASS should not do checks where the domestic violence box has been ticked, if it does not have prior consent of the parents—in other words, parental rights are taking precedence over children's rights and safety. I hope that this amendment will change the court system and help to eliminate these practices along with other examples of domestic violence being ignored by the courts.
	This is a very straightforward amendment, which will require CAFCASS officers or Welsh family proceedings officers in Wales to carry out a risk assessment whenever they are involved in private law proceedings where an issue of harm is raised. The first part of the amendment provides that the section is engaged whenever a CAFCASS officer is involved in any proceedings where the court can make an order under Part 2 of the 1989 Act, including, for instance, all contact and residence orders, or any function in connection with such an order or where a question with respect to such an order arises.
	The second part of the amendment provides that if, in the circumstances described above, the CAFCASS officer is given any cause to suspect that there is a risk of harm to the child concerned, the officer must carry out a risk assessment and inform the courts of the results. Taking these two clauses together, the amendment imposes a wide duty on CAFCASS officers to carry out risk assessments. Such assessments will have to be applied consistently whenever there is an issue of harm raised in private law proceedings in which CAFCASS is engaged. That is important because each case must be considered individually with the focus on the well-being of the child.
	I appreciate that the amendment places greater burdens on CAFCASS officers, but as my noble friend Lady Pitkeathley said in Committee, anything that enables those working with families to have more clarity about how they proceed is bound to be helpful. I hope that she, our Front Bench and the rest of the House find this amendment helpful, and I hope that it will be a part of their new CAFCASS domestic violence policy and toolkit. As others have said, the resources will have to accompany this extra duty.
	I also appreciate that this amendment is not the total answer, and I have no doubt that when the opportunity arises we will return to the issue, but I believe that it is a major step forward and I hope that the Government will feel able accept it. It is clear that the present position is not robust enough and that providing guidance is not enough. Risk assessment has to be built into legislation. It is crucial to ensure that contact is safe before it is imposed.

The Lord Bishop of Manchester: My Lords, the clergy in their pastoral ministry often come across cases of domestic violence and, sadly, child abuse. In that regard, all of us on these Benches welcome the amendments. However, in my experience as a Bishop I have come across complications relating specifically to risk assessment, where the precise qualifications of the risk assessor concerned have subsequently been questioned by a solicitor. In responding on these amendments, will the Minister reiterate and give further assurances about the ways in which the people who are to undertake risk assessment can be properly trained and the information about them made available to those whose job it is to decide on risk assessment? Particularly in my profession, we sometimes have to find people to do these risk assessments before an issue has come before the courts. Therefore, in that preventive area, it is extremely important for us, and any guidance the Minister can give on making secure these risk assessments would be most welcome.

Baroness Walmsley: My Lords, I support this amendment, to which I have put my name, because it does what I had hoped we would be able to do during this Bill—strengthening and making more consistent the processes by which children's safety is looked after by the courts.
	I have been influenced considerably during our deliberations by the valuable report by Her Majesty's Inspectorate of Court Administration. It contains some conceptual leaps, but it is a very useful document. It makes a number of recommendations that line up very well with the amendment. Recommendation 2 says that CAFCASS should,
	"ensure that all cases, including conciliation at court are subject to risk assessment and liaison with other agencies".
	Recommendation 3 says that it should,
	"implement a strategy to ensure improved practice in domestic abuse cases".
	These are all recommendations to CAFCASS.
	Recommendation 5 is that,
	"to improve services to children and families CAFCASS should provide training . . . in assessment and risk assessment skills",
	picking up the point just made by the right reverend Prelate. Recommendation 8 is to,
	"take steps to ensure an appropriate balance is maintained between safety and service delivery through the use of robust risk assessment procedures".
	Finally, Recommendation 11 suggests that HMCS should,
	"provide appropriate training to assist staff in gaining a greater understanding of domestic violence and its impact on survivors".
	All those recommendations lead us to one such as has just been described by the noble Baroness, Lady Gould of Potternewton. However, a poor risk assessment could be much worse than no risk assessment at all, so training is very important indeed. If the Government are minded to accept the amendment, they must put the resources where their intentions are and provide the resources for that training and for the manpower—and woman power—that is to brought to bear to carry out the assessments, so that we can be assured that they will be of high quality.
	I am aware that CAFCASS is not in a position to match the golden handshakes or enhanced salaries that many local authority social services are now offering to social workers to come and work for them because of the great crisis that we have had in recruitment and retention of social workers. CAFCASS has simply not been given the means to match those incentives and, unless it is, it will not get the best quality social workers coming to work there. That is what we need to support the amendment. However, I very strongly recommend it to the House and very much thank the noble Baronesses, Lady Gould of Potternewton and Lady Thornton, for there persistence in coming to something that I hope the Government will be able to accept.

The Earl of Listowel: My Lords, I, too, support the amendment. I greatly admire the single-minded attention to the matter that the noble Baronesses, Lady Gould and Lady Thornton, have given on this occasion and in the past. I also remember how passionately the noble Earl, Lord Russell, felt about this issue.
	I first wish to refer back to when, due to a failure on my part, I did not ask the noble Earl, Lord Howe, about his response to an earlier amendment. In referring to the report, he said that he believed that the failure was in assessment. Clearly, the amendment will work towards addressing his concern, having read the report, that the assessment process was at fault. I wanted to ask him whether he recognised that that assessment failure will take a long time to remedy. It is not just about developing the new training programme; the courts need to be trained in it, as do the social workers. There is a culture in CAFCASS, which the report points to, of being hurried and not giving enough time to things, which is partly to do with resources, as noble Lords have said, and is partly to do with retraining. All those things take time to change.
	I would not wish your Lordships to believe that, simply because we now have a welcome start in ensuring the safety of children involved in these processes, we can therefore move forward with the other measures that we decided not to include earlier this afternoon. That is the main point that I wish to make.

Lord Adonis: My Lords, we seem to have almost a unanimity of opinion in the House this afternoon, which I hope that we can retain for the rest of our proceedings. Amendments Nos. 27 and 34 have been tabled by my noble friends Lady Gould and Lady Thornton, to whom I pay tribute for the huge time that they have spent pursuing these issues, long before my arrival in the House, in successive Bills. The Government are happy to accept those amendments, as we believe that they are a very constructive step forward in ensuring that issues of domestic violence and child abuse are properly addressed as soon as they are raised and before decisions about contact are made, or at any other point in private law Children Act proceedings when they would be relevant.
	The right reverend Prelate raised the important issue of training officers who are to undertake risk assessments and how a risk assessment that is poorly undertaken can have calamitous consequences for those concerned. I entirely agree with him and know that the Children and Family Court Advisory and Support Service takes extremely seriously the training of those who undertake the assessments. He will have heard what my noble friend Lady Pitkeathley said on the subject. We believe that it is an important step forward. CAFCASS is already highly experienced in making these risk assessments and already undertakes them when it believes that they are appropriate, but putting it on a statutory basis will be a step forward and will address many of the concerns that have been raised in various stages of the debate on this Bill that the interests of the child should be paramount. That includes assessing as expeditiously as possible concerns about domestic violence and child abuse.
	I am glad that the amendments have had such a warm welcome from CAFCASS. We believe that they will need to be properly resourced, and we will provide the resources necessary. We see this as an important step forward and are happy to support the amendments.

Baroness Gould of Potternewton: My Lords, the noble Baroness, Lady Walmsley, is absolutely right: sometimes persistence does pay off. On this occasion, I can only say I am delighted that the Government have accepted this amendment, and that changes need to be made to court processes. I repeat, however, that this amendment is not the total answer, but it will make a difference, and will ultimately provide a safer environment for so many children. I take the caveats about resources and training, and look forward to hearing that those will be made available, but it gives me great pleasure to move my amendment.

Lord Northbourne: My Lords, I should say that I forgot to explain to the House that my noble friend Lady Finlay cannot be here because she has had to go to support her mother due to the death of a relative in France.
	This is a probing amendment. In the past 20 years the proportion of children born to unmarried parents has increased dramatically. While many unmarried fathers share parental responsibility, as defined in the Children Act, with the mother, it is estimated that more than 1 million do not. These fathers are in a kind of legal limbo. Many accept the full obligation of being a good father, unconscious of the fact that they have no right in relation to their child or its welfare. On the other hand, an increasing number of others consider that to father a large number of children is a macho achievement, and persuade themselves that it is up to the mother and the state to concern themselves with bringing up the child.
	Setting aside entirely any moral considerations that may or may not be involved, I am concerned about the practical implications of this state of affairs for the welfare, wellbeing and future prospects of an increasingly substantial minority of the nation's children, and about the increasing cost to the state of assuming the responsibilities of more and more indigent fathers. This uncertainty in the law—and indeed in the shared values of our society—about the responsibilities of unmarried fathers means that children cannot be taught their responsibilities as citizens in this respect in school or elsewhere. Because we are a multicultural society, there are some ethnic groups whose cultures and values relating to parental responsibility are different from ours. How can they learn what it is to be a British citizen if we have no established norm?
	At the root of the problem that this Bill is designed to address is the increase in the number of children exposed to family breakdown. How can this be reversed if there is fundamental uncertainty in the law about the responsibility of those 1 million citizens who have children but no parental responsibility?
	So I ask the question: what are the obligations of a citizen who becomes a father, first towards his child, and secondly towards the state? This amendment, like its predecessor in Grand Committee, is a probing amendment to draw the attention of the House to the need to give some clear guidance on the obligations to his child of a father who does not have parental responsibility, and to ask the Government whether they are prepared to clarify the law on the obligations of unmarried fathers; and if not, why not?

Baroness Morris of Bolton: My Lords, I speak to Amendment No. 22. I thank the Minister for his reply in Committee. However, we believe that delay is the enemy of resolving many of these problems. This amendment would require the court to consider the time by which a contact activity can be provided, and is likely to be completed, before making a direction, in order to allow sufficient time to work with the parent or family concerned, but to avoid such directions in themselves causing delay if the facility is not available. The amendment also highlights the issue of the need for adequate resources for the provision of a framework or range of contact activity services across the country in order that children and their families may benefit from them.
	As I said in Committee, there is an acknowledged need for better facilitation of contact orders, and this amendment was suggested by the Law Society. However, we are concerned that there should be adequate resources for the provision of contact services across the country, in order that children and their families may benefit from them in a timely manner with less need for recourse to more lengthy or further court proceedings.
	The range of options to assist the implementation of an order needs to be sufficiently flexible to address the problem, and the options themselves need to be available. For example, there is no point directing a parent to undertake a parenting programme designed to address intractable contact disputes if the facility is not available locally and is not accessible. In order to avoid directions in themselves causing delay, we therefore suggest that the court should be required to consider the time by which this time can be provided, and whether it can be provided over the likely appropriate period of time in respect of the family concerned.
	There is already continuing concern among practitioners on the ground about the capacity of existing resources in some areas. For example, I believe that in some courts CAFCASS is not yet in a position to provide the additional facilitation and support services to fulfil their intended changing role in resolution, or supervised contact centre services may be unavailable. I believe that only one contact centre is available in Wales. In Committee, the Minister stated that he thought that the amendment,
	"would impose an unnecessary burden on the courts and the providers to specify a precise time period over which the contact activity is to be provided".
	He went on to say that this would run the risk of,
	"reducing the flexibility that the Bill provides".—[Official Report, 12/10/05; col. GC 95-6.]
	I argue the opposite. It will reduce flexibility and increase the burden only if the resources are not there. If they are not there in adequate measure, the principle of contact activities within this Bill will be empty, as they will not be able to be used in a timely and efficient manner.

The Earl of Listowel: My Lords, I thank the noble Baroness, Lady Morris of Bolton, for tabling this amendment, because it gives us another opportunity to emphasise the concern about the resourcing of contact. It also permits me to tell the Minister that I now recall it was Beverley Brooks—until quite recently the chair of the National Association of Contact Centres—who was appointed the chair of the committee to look at the funding of contact centres. The committee found that to resource contact centres adequately cost £8 million a year, but, in her evidence to a Select Committee on this new Bill in the other place, she said something to the effect of: "Now you are asking contact centres to provide a lot of new services". So she expressed even more concern that contact was not being given the resources it needed to do the job required.
	To the best of my recollection, the issue in Wales is that there is only one contact centre that provides supervised contact. That is important to our deliberations today.

Baroness Ashton of Upholland: My Lords, I understood what the noble Lord was saying. We must recognise the differences between different groups and that many take their responsibilities extremely seriously. Earlier the Child Support Agency was mentioned and my noble friend Lady Hollis, who is no longer in her place, pointed out that there are differences between those who contribute through the Child Sport Agency and those who do not. It may be interesting to debate the various ways in which people approach the matter.
	The noble Lord's amendment is interesting. We can offer him reassurance on the point of principle that he raised. In the Children Act 1989, there is a welfare checklist in Section 1(3). The checklist directs the court with respect to the child concerned to have regard to,
	"how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs".
	That is in the spirit of what the noble Lord is searching for in the Bill. I also accept that the noble Lord raises a much broader debate, which I shall not enter into with great gusto at this point, about how we ensure that people understand the importance of being a good parent, including education in its broadest sense, not just within the school framework. That is important long before people have children and it is important when they have children and a relationship ends and the situation comes within those covered by the Bill. I accept the importance and value of that, but I believe that we have covered that point in the Bill.
	In Amendment No. 22, the noble Baroness, Lady Morris, considers the activity that will take place. There is a great deal in what she said. We have to be alive to the risk of delay for all the reasons mentioned by the noble Baroness. We shall ensure that the courts are guided by CAFCASS so that they can work out what is available locally and how quickly it can be made available. I believe that in the Bill we have covered the concerns of the noble Baroness and I hope that she will consider that. We have said that the courts must, before making a contact activity direction or condition, be satisfied that the suggested provider is suitable to provide the activity, that the activity is appropriate in the circumstances and that it is provided in a place to which the individual can reasonably be expected to travel.
	We have established that the provider who is suitable to provide the activity will, in light of the no-delay principle in a Children Act, include establishing that the activity can be provided within the timescale. The combination of the no-delay principle within the Act combined with that point does what the noble Baroness wants to do. I hope that that gives her the assurance she seeks within the legislation. We shall undertake a full mapping exercise to ensure that we understand exactly what provision is available. I have already said that we want to ensure that the £7.5 million is spent well on child contact centres, notwithstanding what the noble Earl, Lord Listowel, has said—I am grateful to him for explaining that in more detail. We know there are issues about contact centres, both in terms of geographical reach and in what they are able to offer. The matter does not rest with my department any more, but I know from contact with my noble friend at the Department for Education and Skills that his department is looking at that. I am sure that he will write to the noble Earl to tell him more about that. We shall deal with this issue. I believe the amendment is covered in the Bill already.

Lord Adonis: My Lords, the noble Earl asked if I could express sympathy with his intentions and offer some mild words of comfort. That was not a very demanding threshold; I am used to more demanding thresholds. Certainly I am in a position to offer him sympathy and, I hope, rather more than mild comfort that we are able to achieve the objectives he has set out.
	The noble Earl's Amendment No 25A would ensure that comprehensive and timely investigations into allegations of domestic violence and abuse are made. The noble Earl's Amendment No. 24 would put sanctions in place on those who make false allegations. Amendment No. 25A makes the important point, with which we entirely sympathise, about the need to hold comprehensive and timely investigations. We believe that Amendment No. 27, tabled by my noble friends Lady Gould and Lady Thornton, and the noble Baroness, Lady Walmsley, will ensure that that takes place. It will ensure that there are risk assessments in all cases where domestic violence is alleged. We would expect those investigations to be timely because they will in most cases be precipitated by the new gateway form which is completed as soon as parents enter the system. In cases where allegations of domestic violence or abuse are made we would expect an investigation to take place pretty well immediately after that so we would expect the time lines the noble Earl has set out in his amendments to be adopted, but we do not think it is necessary to put them on the face of the legislation. We entirely share the objective that he seeks to achieve. We believe that the new and more robust statutory framework put in place by Amendment No. 27, with the requirement for risk assessments, will achieve what the noble Earl seeks to achieve.
	Amendment No. 24 seeks to put in place sanctions to discourage false allegations of domestic violence or harm. The amendment proposes that the court should take such allegations into account when making contact decisions. It may also treat them as an aggravating factor when considering an enforcement order or financial compensation order. We again entirely share the concerns underlying this amendment, but we hope that it will not be pressed for two reasons. First, allegations of domestic violence or harm will now be assessed at the outset of contact proceedings and in any event under Amendment No. 27, which has just been accepted by the House. We believe that the fact that there will be rapid and comprehensive assessment of any allegations will be a very significant deterrent to making false allegations. So we believe that that objective will be secured.
	Secondly, there may be some cases where it is in the child's best interests to have a particular level of contact with an accusing parent despite the fact of the accusations. The courts will need to take account of that. But where the courts believe that a penalty would be appropriate and would be consistent with the best interests of the child, they already have the full powers at their disposal to make such a penalty, and indeed, they have been doing so. Only this year the Court of Appeal made a costs order against a parent who made such false allegations, and ensured that serious action was taken in that case. The case in question is Re T, which made the attitude of the courts very clear. In that case on the ending of a marriage various agreements and orders for contact had been made which had all faltered almost immediately. The resident parent then made allegations of sexual abuse. These were investigated and found to be false. The falsely accused parent had expended considerable sums in defending the actions. The Court of Appeal confirmed the decision that the resident parent pay costs to the non-resident parent. Cost orders are unusual in family proceedings since the courts are anxious to avoid seeming to punish one parent if that might lead to reduced co-operation between them. However, in this case Lord Justice Wall could not have been clearer in his judgment on upholding the application for costs. He said:
	"We do not think that the orders for costs which we have upheld in the instant case are either likely to or should deter a resident parent from advancing a reasonable opposition to contact which is genuinely based on a proper perception of the child's interests. But those who unreasonably frustrate contact need to be aware that the court has the power to make cost orders in appropriate cases and that the consequences of such unreasonable behaviour may well be an order for costs made against the resident parent who has behaved unreasonably".
	As I said, that is a Court of Appeal judgment made this year. The decision demonstrates that the courts can and do take appropriate action in cases of false allegations. They are very mindful of the concerns raised by the noble Earl. In the context of the more robust regime that we are putting in place for risk assessments, which we believe will also be a significant deterrent to false allegations, I hope that the noble Earl will feel able to withdraw his amendments.

Viscount Astor: rose to move, That this House calls upon Her Majesty's Government to withdraw the Licensing Act 2003 (Second Appointed Day) Order 2005 (S.I. 2005/2091) and to replace it with an order specifying the second appointed day as 30 June 2006 in order to allow more time to address public concerns about the effects of the proposed changes and for arrangements for any required changes to be completed in an orderly manner. [8th Report from the Merits Committee]

Viscount Astor: My Lords, in the 2001 general election the Labour Party sent a text message to its voters, saying:
	"Vote Labour if you don't give an XXX for drinking up times".
	That message—a somewhat cheap electoral ploy—bounced the Government into introducing the Licensing Act, with the prospect of 24-hour drinking. It was an unwise promise—24-hour drinking is a concept that nobody asked for, nobody wants and has been condemned by all. The Government failed to listen to the serious concerns that were raised in this House during the passage of the Bill, and now an order is being made to bring in a licensing policy that is a total mess.
	Most people who go to bars, pubs and clubs behave well—the vast majority do so. Nobody wants 24-hour drinking, but many would like a reasonable extension to the hours that pubs, bars and restaurants can be open in their area. They should be allowed to open for longer if their customers want it, and if it does not create unacceptable consequences for local residents. Reasonable extensions, where appropriate, do not in themselves encourage bad behaviour. Indeed, there is evidence in Scotland that a more liberal policy has worked well.
	There are serious problems with binge drinking, mainly by those under 21. Binge drinking is a serious problem, as it leads to all kinds of other unacceptable behaviour, involving increased costs for the police and the health service. Sometimes it is not just drink that causes problems, but a mixture of drink and drugs.
	Alcohol sales in pubs have fallen in the past 15 years, and they have been declining by about 1 per cent a year, while alcohol sales in supermarkets have grown by about 5 per cent per annum over the same period. Supermarkets are cheaper. You can buy a tin of lager in a supermarket for 50p, which would cost £3 in a pub or bar. I am afraid that supermarket staff do not always check the age of their customers, and now that they are open 24 hours a day, they can apply for licences to sell alcohol for 24 hours a day, resulting in the problem becoming worse.
	I know something about the problems faced by the industry, local councils, residents and customers. In 1997 I founded a bars and restaurants business. We built the company up to 36 city bars, ranging from London to Aberdeen to Newcastle to Manchester, and even to Cardiff. On Saturday night we would have well over 30,000 customers eating and drinking in our restaurants and bars throughout the country. We were—I hope—responsible operators, partly because we did not let in those under 21, but mainly because we had a strict drinks and door policy. I do not have to declare an interest any more as we sold the business at the end of October.
	The result is that I have an insight into the industry of both good and bad operators. There are some bad operators who should not be allowed to trade. They could easily have been put out of business had the will and determination been there to do so. We did not apply for any new extensions to our licensing hours.
	The Government's policy is such a mess that it is difficult to know where to start. The DCMS has issued 180-page guidance to the Local Government Association, which is supposed to prevent the explosion of binge drinking, but it is skewed against those who want to object. For example, the guidance states that you have to live in the vicinity to object. We have seen that nobody understands what that means. Some councils believe it is 100 yards; some are Euro and believe it to be 100 metres. What does the Minister think the definition should be? What did the guidance intend?
	Some objectors have been threatened by some of the larger pub operators that should they lose their objection they might have to pay costs. Can that really be the case? I am afraid that it is. Two Labour councillors in Newcastle are facing costs because of their appeal to the magistrates' court. Will the Minister explain that? Logically, if that principle is extended to other areas of council policy, such as planning applications, all decisions by local councils might be subject to the same threat of costs. I cannot believe that that is what was intended.
	The guidance also prevents local councillors objecting to licences in their own wards. They are not even allowed to address their licensing sub-committee. We are told that local councils might be biased in favour of their local residents. But is that not why they are there? Have local residents not elected them to be precisely that—biased in favour of their local electors? What is the reason for that erosion of democracy? Will we now be told by the Government that MPs cannot represent their own constituents, or object to something in their own constituency? That is ridiculous.
	The problem with late-night drinking is not just what happens inside pubs, but the noise customers make when leaving. When people all leave pubs and clubs at the same time it can be noisy, but the guidance suggests that local authorities cannot stagger closing times. Indeed, it is clear the nuisance caused by noise outside the premises cannot be taken into account when local authorities apply for a closure order. It is very often the noise outside that local residents care about most.
	The Government should delay bringing the order. Their argument is that the Act gives the police new powers, but we all know that the police have plenty of powers to tackle existing problems. The problem is that they do not use them. Many, both inside and outside the industry, are constantly frustrated by the inability of the police to act, but it is difficult to understand why. I have often wondered whether the police allow a bad operator to keep trading so that they know where all the trouble-makers are in the evening in a particular area. In Birmingham responsible bar operators have had to close because of continued violence by the Yardie gangs. The police did little to help responsible operators, and now some months later, we have seen the results—an increase in crime and disorder in Birmingham.
	Environmental health officers already have the powers to close licensed premises that create a noise nuisance. The problem is that often many councils do not have arrangements for their officers to work at night. Some do. From experience, I know that Westminster council does, and their officers are extremely effective.
	The order to implement the Licensing Act was supposed to give local councils and their constituents more say. In fact it gives them less. It is a mess. What is more, it will cost local authorities more than they receive in licence fees to organise a new regime. The Government promised that it would be self-financing. Westminster council, for example, estimates that its net deficit on licensing will be £4.6 million in 2006–07. That represents a £38 council tax increase per Band D taxpayer. Surely that is not what was intended.
	I have to say as an aside that if the bizarre smoking laws, which have been trailed, are put into effect it will get worse. In many pubs about 10 per cent of their turnover is food. Now they will have to decide whether to continue providing food and allow no smoking, or allow smoking and provide no food. It is a mess; a farce. Let us have either no ban or a total ban. That is the only thing that makes sense both inside and outside the industry.
	The Department has also promised a code of practice on irresponsible drinks promotions. When will we see a draft? Who has been consulted? The Department is strangely silent on that matter.
	Licence applications are in disarray. We know that in Westminster alone 350 premises—about 10 per cent—have failed to apply for their new licences. That is replicated all over England. It is too late for them to apply to get a licence in time. As a result, come 24 November, those without a new licence will be trading illegally. What is the Government's response? It is extraordinary. We are now told that more than 20,000 bars, pubs and restaurants will be allowed to operate illegally. We are told that the police will take action only when there are specific concerns about crime or disorder. In effect, local authorities are now being encouraged to turn a blind eye. How can the Government pass an Act and expect us to allow this order to go through when they are so cavalier about the law? The message is, "We passed it but don't worry you don't have to obey it because we mucked up the introduction of this new policy". Is that a sensible policy? Is it sensible law-making?
	Who can and cannot break the law? Who will decide? Will it be the local authorities, the police or will the departmental Minister get a list on his desk every Monday morning? Will licence applications be accepted retrospectively? We await the Minister's answer. The policy is a farce; a total mess. The order should be postponed. The Government should accept my Motion, which would allow for all licences to be considered, so there would be no law-breaking. The police and local authorities have all the power they need, and the order does not change that.
	A survey published today by the Evening Standard found that more than 600 premises—160 pubs, 75 clubs, 110 hotels and 200 supermarkets—have now been given approval to serve alcohol 24 hours a day. That totally disproves and refutes the Government's earlier claim that there would be only a handful of licences. What is more, petrol stations have jumped on the bandwagon and are applying to sell alcohol 24 hours a day.
	The delay would allow the flawed guidance to be rewritten—guidance, that even the Minister responsible in another place, has already agreed to review. I commend my order and I beg to move.
	Moved, That this House calls upon Her Majesty's Government to withdraw the Licensing Act 2003 (Second Appointed Day) Order 2005 (S.I. 2005/2091) and to replace it with an order specifying the second appointed day as 30 June 2006 in order to allow more time to address public concerns about the effects of the proposed changes and for arrangements for any required changes to be completed in an orderly manner.—(Viscount Astor.)

Lord Avebury: My Lords, the noble Viscount, Lord Astor, referred to this Act as a farce and a mess. It is not only a farce and a mess, and a shambles, administratively, but a pernicious and imprudent measure that will result in greater crime and disorder, heavier burdens on the health service, and more young lives ruined by illness and disablement.
	It runs directly counter to the Government's professed objective of reducing crime and disorder. The Interim Analytical Report said that alcohol-related harm was then running—in 2001—at £20 billion a year, of which crime and public disorder accounted for £7.3 billion. My noble friend has given other examples of the enormous costs being incurred in connection with alcohol harm. That report also showed that as consumption of alcohol per head increased, so did the directly measured harm, such as accidental deaths, suicides, and alcohol-related diseases.
	As my noble friend observed, the same effects have been seen in Australia, Iceland, Ireland—and, I would say, Scotland as well. The Government have failed to produce any respectable academic evidence for the claim that the limited relaxation of drinking hours in Scotland in 1976 led to a reduction in crime and disorder there. As everybody knows, Scotland was at that time in the middle of a major recession and that was the reason for the unusual results that were obtained there momentarily. Scotland is now back on the same level of crime and disorder as we are in England and Wales. All long-term studies show that—other things being equal—the amount of harm caused by alcohol is directly related to overall consumption, and that increases in consumption will lead to more harm.
	Let me relate that to the small area of central London covered by the Soho Society, which tells me that in connection with the Act the licensing committee received 698 applications, 450 for renewals of the previous licence, and 248 for variations or extended capacity, which again reinforces the point made by my noble friend that we are not talking about a very small of increase in hours but a widespread variation being requested by the operators. There were 192 objections on the grounds of cumulative impact, of which 110 were not considered in time and therefore deemed to be refused. Of the 82 applications that were considered, 78 were refused, and 70 have appealed to the magistrates.
	Does the Minister agree that since all those applications come under paragraph 2 of Schedule 8 to the Act, the licensing authority ought only to consider the renewal of the existing licence and should look separately at the extension of hours which is being requested, once the bare renewal has come into effect? None of us appreciated that that was the effect of the schedule, but certainly this is the way that we read it now. But magistrates have begun to hear appeals already, where the authority has decided that both the renewal and the variation can be considered simultaneously.
	If I am wrong, and those appeals are successful, other licensees will ask for extensions and, in the worst case, throughout the area of Soho, there would be on average another three hours of drinking at all the 685 outlets. If, say, 300 people in each of these establishments drinks a couple of pints an hour, they will consume an additional 1.25 million pints during the extra time, causing a significant amount of extra harm. The same arithmetic could be done for every area in our towns and cities where the concentration of late-night drinking has already led to the kind of mayhem that we have seen on programmes such as the BBC's Drunk and Dangerous.
	In one of the cases that was heard in Westminster—that of Candy Bar at 4 Carlisle Street W1—the district judge ruled that, although it appeared that the respondents in an appeal to the magistrates were exhaustively listed in paragraph 9 of Schedule 5, and did not include "interested parties" who had objected to the application, notwithstanding their right to lodge an appeal, they should have the option to be a respondent on equal terms with the local authority. Do the Government agree with that decision of the judge? The judge also directed that the application be considered de novo on appeal, undermining the principle that local authorities should be the primary determinants of licensing policy.
	The same judge in the appeal of Sophisticats, a strip club on Welbeck Street, who requested to be allowed to sell alcohol up to 5am instead of 3am, made no reference to the council's licensing policy. This is likely to be the case everywhere. The magistrates will hear all the evidence again, taking two days, with solicitors and barristers on either side, and obviously licensees would be stupid not to appeal when they are already getting clear signals that the magistrates are not there to reinforce the licensing policy of local authorities, but to develop their own independent policies. Could the Lord Chancellor not apply the Civil Procedure Rules to the magistrates' courts under Section 82 of the Courts Act 2003, to prevent a total log-jam in the magistrates' courts?
	The decision in the Candy Bar case may yet be appealed, and residents find themselves back in the situation of having no rights of appearance at appeals which they themselves have lodged. Is there anything the Minister can do to prevent that situation arising? Because if that situation is allowed to happen, then the magistrates hearing all these appeals will not have reference to anything that was said by the residents—they will not even listen to the residents—but will make up their minds, as the judge in this particular case said, de novo.
	There is a great deal to be said on the guidance, particularly in the way it appears to suggest that local authorities have no power to set terminal hours—as the noble Viscount, Lord Astor, pointed out. They can decide that the cumulative impact of licensed premises on a given area has an adverse impact on law and order and therefore that they will not grant any new licenses. Since an application for longer hours is now treated as a new application, that allows local authorities to refuse them after the existing licence has been renewed. It seems, however, that many local authorities have not fully understood the complex advice on cumulative impact and have failed to appreciate that it trumps the strong recommendation in paragraph 329 that longer hours are important to ensure that concentrations of people leaving the premises at the same time are avoided.
	Finally, I return to a subject which has been argued for two years without reaching a satisfactory outcome. I suggested that three indices be used to measure the incidence of crime and disorder before and after the second appointed day. Those were: crimes of violence against the person; ambulance call-outs on or in the vicinity of licensed premises; and A&E department statistics from hospitals to which the victims of drink-related attacks and accidents are likely to be taken. The Government have finally conceded that the first crime indices will be collected, but only in five named local authority areas, and in July they were still exploring how A&E data and ambulance statistics could be satisfactorily collected.
	The London Ambulance Service maintains detailed records of time and place of call-outs and I imagine that other local ambulance authorities do the same. I do not understand why the Government arbitrarily limited the assessment of the effects of the Act on crime and disorder to the particular areas chosen, leaving out the whole of the north-west, Wales, East Anglia and the south-west. If the authorities in those areas are already collecting information of the kind that is needed, surely it would help to give a more complete picture if they were incorporated in the assessment. As for A&E attendances, the bare statistics of the number of patients attending between 11 pm and 7 am would be better than nothing, on the basis that a high proportion of the casualties during those hours are very likely to be alcohol related.
	When this Act first saw the light of day, people did not realise how the country had already gone so far towards a licensing free-for-all and how extensive was the damage being caused to a whole generation. Now we are able to see the effects—which have already been described by the noble Viscount and my noble friend—in our prisons, hospitals, psychiatric institutions and morgues. There is no excuse for a Government who are deliberately turning on the taps.
	In her book The March of Folly, the American historian Barbara Tuchman examines leaders such as mediaeval popes, George III and President Johnson, who adopted policies that were plainly contrary to the interests of their people. When alcohol is demonstrably causing enormous harm to our society, a government who promote its use deserve to be included in that list. It is a pity that we cannot postpone the appointed day, not for six months, but for ever.

Lord Davies of Oldham: My Lords, it falls to me to clarify what the House should be concentrating on today. What we have had of course is a repetition of some Second Reading speeches, many of the points in which were not carried through to final decisions on the then Bill. The House should recognise that we are not debating the Act today, but a process of implementation of it that is already completed in accordance with the wishes of the House, other than this final step. I recognise that the final step gives the opportunity for some rehearsal of past arguments.
	The noble Lord, Lord McNally, was kind enough to suggest that the noble Viscount, Lord Astor, produced a forensic dismantling of the Government's position. That was scarcely in evidence during the passage of the then Bill. I heard the noble Viscount refer to the Labour Party's campaign with three Xs in it. That does not sound very forensic to me; it was a four X campaign, related to the advertisement for a famous lager firm. I did not think that we had a forensic dismantling of the Government's case. We had a plea for the final stage not to be implemented. However, the date is significant, because it is the date on which premises licences and club premises certificates are given effect and the old licences cease to have effect. If a vote took place and proved fatal to the measure, which it is not designed to do, vast numbers of our licensed premises would be outwith the law. Thousands of premises would have to apply simply to stay open over Christmas. Such are the reckless arguments presented on the other side of the House that I believe that noble Lords there are prepared to sustain their case on the basis of something that would produce chaos for the industry and the consuming public.
	Let us be frank. This debate is a fallout from a media campaign in the summer that began to identify what it regarded as weaknesses of the Act. The campaign revolved round the issue of binge drinking. Of course I recognise the strength of the anxieties of the noble Lord, Lord McNally, about binge drinking and the problems caused by the late-night economy. I do not for a moment do anything except understand his concern. But he must recognise that he is describing not the impact of the Licensing Act, but what is going on here and now under our present licensing regime. The whole point about the licensing regime that we introduced in the Act was to tighten up procedures so far as licensing was concerned. Noble Lords will recognise that we are involved in a major campaign to bring to the attention of the nation the problems of binge drinking. It is important in that framework that we recognise that the police welcome the additional powers that the Act gives them to tackle the issues.
	Of course excess consumption of alcohol in an irresponsible way is of concern to us all. The selling in an irresponsible way of alcohol in those terms has caused the problem to a large degree, and the Act increases the constraints on the selling of alcohol. Simply to take the argument of the noble Lord, Lord McNally—it was adverted to by the noble Viscount, Lord Astor—that is why it is important that we concern ourselves with binge drinking, and that the Act come into force. From the second appointed day, the Act will give the enforcement agencies an unprecedented range of new powers to address irresponsible retailing of alcohol. The vast majority of the expanded police powers on closure of premises and modernised offences are expressed in terms which describe events or offences taking place at premises carrying on licensable activities—such as selling alcohol—under the authority of premises licences, club premises certificates and temporary event notices. If the new licences or certificates are not brought into effect, the new powers and offences are without effect too. That is the importance of the order.
	I do not have time to expand on the long list of police closure powers, tougher penalties in respect of selling alcohol to children and more effective review procedures, but I assure the House that this was exactly the thrust behind the Bill and the basis of the Government's argument for why the Bill was needed. The House heard that repeatedly when we debated the Bill.
	It is not just the licensing powers that some noble Lords opposite would delay. The powers of environmental health officers to close licensed premises that are causing noise nuisance did not exist before the Act. We need to be able to enforce them. They are expressed in the new licences that the Act envisages.
	There is no demand for delay from those who will benefit from the powers or from those who are to be licensed under the new legislation. The Association of Chief Police Officers does not want delay on the Act—very much the opposite. It recently confirmed clearly that it did not want implementation to be delayed.
	Licensing authorities, which have put enormous effort and good work in to delivering the requirements in the transitional period of the Act, do not want it to be delayed—quite the opposite. The responsible parts of the alcohol industry, who have paid for their new licences and expect to have the benefits of them from 24 November, are certainly not arguing for delay.
	Village halls and sports clubs that have met the requirements of the new licences are also not in favour of delay. Local residents have engaged in licensing issues in greater numbers than we have seen before and have put in time and effort on objecting to variations. That would all be wasted if the Act was not implemented. They do not want delay.
	So who wants delay? Some sections of the media have contended that delay would be somehow in people's interests. We all recognised that binge drinking—to say nothing of the attendant crime and violence—need to be tackled, but the extent to which the Act is designed to get a grip on the issue has been misinterpreted.
	Noble Lords must recognise that one crucial issue that ran through the heart of the Bill was that a large number of people came on to the streets at the set throwing-out time for pubs and clubs, which meant that they were all milling around and competing for taxis and other forms of transport home, causing tension and confusion. The whole point of the flexible hours was to reduce that.

Lord Davies of Oldham: My Lords, the noble Lord is describing the current situation. He cannot be arguing that we ought to delay the Act and persist with the status quo, which he has eloquently criticised. The whole point about the present situation is that we need licences to be looked at more carefully and we need local representation. The noble Viscount, Lord Astor, with the support of the noble Lord, Lord McNally, introduced some issues about whether councillors could make representations. It is suggested that there is a restriction on councillors if they do not live in the area that they represent. That restriction obtains only if no local resident has raised an objection. Local councillors, local representatives and local people are expected to make representations on licences—and are in the process of engaging in that process, which we have never seen before. I cannot recall the noble Viscount or his predecessors on the Front Bench—he did not have the joy of appearing on the Front Bench throughout the passage of the Licensing Bill itself—emphasising at that stage that they wanted to preserve the status quo because local opinion was so frequently heard with regard to the issuing of licences; very far from it. The whole point is that this Act brings in a greater degree of local representation and involvement.
	I hear the point that the noble Lord, Lord McNally, makes about the restriction on local councilors and we will look at that. We may have defined matters too tightly in terms of the concept of "the vicinity". But I want him to recognise that we are bringing local councillors and representatives of local interests into the debate about licences and the role that they can play in licences which just did not obtain before this Act became part of the position.
	We are substantially towards the concluding stages of implementing the Act and we had all these actors play their part in the development of the licences. It is suggested that a very large percentage—in the media it has been suggested that as many as 10 per cent—of licensed premises will be trading illegally after 24 November because they will not have their licences. The figures do not amount to a fifth of that. We are talking about a very small number of premises indeed. However, because of the difficulties of meeting the fairly tough requirements in the procedure under the Act, if some premises have obtained a licence and it is known and on the record that they have obtained the licence but the certificate has not been sent to them for display in the bar—where they are obliged under the law so to display—we are expecting that there will be an element of tolerance with regard to the law in those terms. We do not expect the police to be certificate chasing when they are able to ascertain that a licence has been properly applied for and has been gained. That is not a matter of loose interpretation of the law; it is asking for common sense to be applied in what we all recognise is a major change to the arrangements for licensing premises in this country.
	The noble Lord, Lord Colwyn, raised the issue of live music—an issue on which he was most eloquent during the Bill's passage. Of course I respect his opinion on that. In the transitional period there has not been a decrease in the number of venues providing live music. We do not think that the Act is bad for live music. We think that abolishing the "two in a bar" rule increases opportunities. As far as we can see in licence applications, there will be increased opportunities for live music in licensed premises. However, as I move from the Scylla of the criticism of the noble Lord I land on the Charybdis of the criticism of the noble Lord, Lord Avebury, on the question of noise. But of course we are concerned that the local community will be in a position to make its contribution to the issuing of licences to guarantee that local opinion is taken into account.
	I recognise that what we have had this evening is a really rather jolly time in revisiting the Act. However, in the terms of the Motion, there is no intent to stop the second designated day of the Act, because to do so would throw the whole of our licensed premises and the selling of alcohol in this country and the control over selling of alcohol into complete chaos. On that basis, I hope that the House will reject the Motion.

Baroness Ashton of Upholland: My Lords, I think that we would all agree with the sentiments expressed by the noble Earl, Lord Howe, and the noble Baroness, Lady Howarth. It is important that promises made to children are kept. Distress can be caused by a parent not showing up for a contact arrangement, to which a child may have looked forward, and, equally, by one parent refusing to allow a child to see the other parent. I accept the sentiment behind these amendments.
	As the noble Earl quite rightly predicted, I do say that the courts are able to do this already. They can use their discretion; they can decide what form a new order should take; and, if it is thought that it should embody some form of compensatory contact for the child's sake, that indeed is what they will order. We know that in his evidence to the Constitutional Affairs Select Committee, in answer to a question from Dr Whitehead regarding whether consideration had been given to the idea of financial compensatory contact, Lord Justice Wall said:
	"As a matter of practice, it happens. That is a regular order that would be made. If a contract is frustrated on a particular occasion, the court will almost invariably seek to make it up in some way or another".
	Therefore, although I understand the noble Earl's sentiment, the evidence from Lord Justice Wall is that that would be the case.
	Underlying that, what really matters is the speed with which it is done. One of the issues raised by fathers' groups is that they are denied contact because Mum is not at home with the child when they visit or because something else has happened, and it takes quite a long time for them to return to court to deal with the issue. That is why we are extending the monitoring role of CAFCASS. Under Clause 2 of the Bill, the court can ask the CAFCASS officer to arrange for the monitoring of contact in any case. The purpose of that is to be able to say, "Did contact happen?" and, if it did not, to enable the CAFCASS officer to apply to the court to have the parent brought back before it very quickly. In that event, one would not end up with the situation, about which some fathers have spoken to me, that a new status quo evolves in which the parent does not see the child very much and feels that the courts are reluctant to undermine that when that is what the child has been used to. The court has the power to bring back before it quickly any offending parent, there is some evidence from the judges that that happens, and they certainly feel very strongly about it. I therefore hope that we can resolve this important issue and that parents will be able to feel that if they do not get contact they will be given compensatory time and that it will be dealt with swiftly. On that basis, I hope that the noble Earl will feel able to withdraw his amendment.

Lord Northbourne: My Lords, the Government's case for arguing that we do not need to amend this Bill rests on Clause 1 of the Children Act 1989 relating to the paramountcy of the welfare of the child. If the courts require that the child's welfare should be the court's paramount consideration, should not the Government also be required to be concerned to ensure that the child's welfare is their paramount consideration? Such inquiries as I have been able to make have convinced me that at present that is not the case.
	The report Domestic Violence, Safety and Family Proceedings quotes criticisms of CAFCASS which clearly relate to inadequately trained staff and pressure of work on staff. CAFCASS is, I believe, struggling manfully to build a team of able, well-qualified officers and to reform the way that it works. To do this job properly over time will involve more resources, not just a few million pounds found from some other budget, but a reliable and consistent funding stream adequate to do the job and to do it to a standard that will, where necessary, ensure the paramount importance of the welfare of each child, not forgetting that there are, alas, an ever increasing number of such children.
	At least five Members of the House—the noble Baronesses, Lady Pitkeathley, Lady Howarth, Lady Morris and Lady Walmsley and the noble Earl, Lord Listowel, referred in this debate to the problems of funding and staffing of CAFCASS in developing its new role. Children have only one chance to grow up. We should not short-change this chance by prejudicing the ability of CAFCASS to fund its activities. In addition, the evidence seems also to indicate that the courts are underfunded and understaffed, causing substantial delays—one of the most serious problems to the effective functioning of the present system. To resolve this problem will need more specialist judicial capacity and a management organisation and ethos that recognises the importance of early intervention and avoidance in delay in proceedings. That, too, will cost money. It will also need a committed and prioritised source of dedicated Treasury funding.
	This is a probing amendment to give the Government an opportunity to tell the House what their funding plans are. It will also give noble Lords more expert than I a chance to tell the House whether and to what extent CAFCASS and the family courts are adequately funded or underfunded today. If the Government argue that this is a money matter which should be reserved to another place, I will explain that I do not intend to place a money issue in the Bill. However, this House has the right to be satisfied that the resources will be available for the additional loads that this Bill will place in the courts and CAFCASS. I beg to move.

Baroness Morris of Bolton: My Lords, my honourable friend Tim Lawton put down a Written Question in another place on Friday 14 October—I am very impressed that it was answered by Monday 17 October—asking the Secretary of State for Education and Skills what funding had been given to CAFCASS in each of the past five years and how much was planned for 2005–06 and 2006–07. Although this rose considerably from 2001–02, from £80.8 million to £107 million in 2004–05, in 2005–06 it is £101 million because £6 million was transferred to Wales. It looks as if it is frozen for 2006–07 at £101 million. At a time when CAFCASS is going to be required to do more, it seems that their budget is frozen. Will the Minister comment on that?

Baroness Morris of Bolton: My Lords, as your Lordships know, the Hague Convention is a multilateral treaty that seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. I have retabled the amendment to discuss in more detail some of the responses that the noble Lord, Lord Adonis, provided in Grand Committee and in his letter of 24 October, for which I thank him.
	In Committee, I raised concerns that had been expressed about the effective implementation of our duties under the Hague Convention and the use of the International Child Abduction and Contact Unit (ICACU)—concerns about whether we really are addressing the scale of the problem. The noble Lord, Lord Adonis, argued in Grand Committee that the convention,
	"is generally recognised as working well and we play a full part in it".—[Official Report, 17/10/05; col. GC 165.]
	I would suggest that only with the true statistics will we be able to clarify if that is indeed the case. I understand the need to protect vulnerable children who may be involved in cases, but surely there must be a way to publish the figures separately from case details. As it stands, we have no idea exactly how many children are abducted by a parent every year.
	Have the noble Lord, Lord Adonis or the noble Baroness, Lady Ashton, seen a copy of PACT's report Every Five Minutes—indeed, they have, it is available—which is a review of the available data on missing children in the UK? It highlights the fact that every five minutes a child is reported missing in the UK. Alongside the human and social cost, missing children must be one of the urgent social issues of our time. Will the Minister's department respond to the report and, if so, when will that response be published?
	The noble Lord, Lord Adonis, said in Grand Committee that the International Child Abduction and Contact Unit in the office of the Official Solicitor, as well as processing applications for return and contact, provides information to parents. I wonder whether the Minister can clarify that information. Does it include legal advice, or just a list of practitioners to whom parents can go for advice? What happens if parents cannot afford legal practitioners?
	In Committee, the noble Lord, Lord Adonis, discussed the Child Abduction Co-ordination Group. Will the Minister explain the most recent suggestions on new ways to prevent abduction and say whether the Government will be implementing them?
	We were glad to hear that the convention was kept under review by the Hague Permanent Bureau through a series of regular special commissions. As the Minister highlighted, the second commission in 2002 concluded that improved contact arrangements could reduce the risk of abduction. Indeed, in the current Hague Project on Preventive Measures, the background document states:
	"Orders or agreements may be sought during, for example, divorce or custody hearings, which prohibit the unilateral removal of a child from a jurisdiction. Such pre-emptive prohibitions at a stage when the parents have possibly never even contemplated abduction may alert them to the potential illegality of any removal. Thus abductions may be averted as a parent is made aware of the need to contact the other parent in order to discuss potential removals".
	I wonder whether the Government have responded to the Hague questionnaire on preventive issues. Did it respond last year to the one on enforcement?
	As a solicitor has highlighted to us, the arrangements for contact in the family law system often make parents unreasonable, thus contributing to the possibility that one will resort to abducting their child. That is why we strongly propose the inclusion of co-parenting and reasonable contact, both of which proposals have been defeated. We need to focus on prevention rather than cure, although we recognise what the Government are trying to do with contact activities and enforcement.
	Abduction is the most dramatic strand of parent alienation, which has critical effects on the child's welfare and mental well-being. I do not know whether this is the right amendment. I do not know whether there is a right amendment to be made to the Bill. We just felt that the matter was of sufficient importance to debate. I beg to move.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Baroness for raising this incredibly important issue. I am the Minister responsible for the Hague Convention, so I am delighted to be able to discuss it.
	I have got the PACT report. I have no views about PACT as an organisation; it seems to be doing an extremely good job. I have already committed my officials to talking to PACT, because a lot of the issues that have been raised by both noble Baronesses should be dealt with by good conversations about what happens. We fund an organisation called reunite, which offers help and support 24 hours a day, seven days a week to parents who may find themselves in this situation. I take on board the comments of the noble Baroness, Lady Barker, about what more we could do to give parents greater support by knowing about other situations that have been relevant in particular countries.
	We keep a lot more statistics than we publish, and the reason why we do not publish them is that we have grave concerns about identifying the children involved. So we know a lot more; I know about all the individual cases that come to my attention. We are keen to ensure that this is kept under review. I do a lot of work with my counterparts in Europe where we may have a particular issue with an individual country where you can see from the statistics that perhaps more needs to be done. We have bilaterals going on between officials and between me and my fellow Ministers to raise issues and try to deal with them speedily as possible. Noble Lords know that my department acts as a "central authority" to process applications and to provide information to parents. I cannot get an answer in time on the specific question about legal advice, so I shall write to the noble Baroness.

Baroness Walmsley: My Lords, this is the other leg of my child safety priority agenda this evening and I hope that it will find favour with the House.
	There are two important contexts in which harm typically needs to be addressed in private law cases. The first is the clear evidence that children being exposed to ongoing conflict between parents causes them emotional harm. That point has already been alluded to. It can arise as a result of the contested proceedings themselves and is recognised in Section 31 of the Children Act 2002, as amended. The second is where allegations of harm are made by one party against the other, which obviously need to be investigated as a matter of urgency to ascertain the risk to the child, either from the allegation of harm being substantiated, or emotional harm being caused by a false allegation of harm being made by one warring parent against another, possibly to boost their case in respect of another issue.
	It is imperative that harm is explored precipitately once evidence of it emerges in whichever of these contexts and that where there is prima facie evidence of harm the court uses its powers to direct the local authority to investigate under Section 37 of the Children Act 1989. Thereafter the public law provisions of that Act would be invoked to ensure the child's safety and protection unless inquiries by the local authority under Section 37 reveal absolutely no evidence of harm.
	It is very important that the private law provisions of the Children Act focus on private law issues and do not attempt to be a second tier system for protecting children, which would replicate or worse still dilute the existing protection system and inevitably confuse practitioners, leaving children at greater risk of harm. The best way to avoid this would be to issue guidance to courts on when and how the Section 37 powers should be exercised, which is why I have tabled this amendment. Section 37 is the vehicle that gets private law cases into public law so that they can then be dealt with.
	I have set down a process to devise the way in which guidance for the courts on the consistent exercise of Section 37 powers should be done in cases where there have been allegations of harm or in particularly high conflict cases. My intention is to bring more consistency and rigour into the whole process. I have reason to believe that such guidance would be welcomed by the courts.
	I draw the attention of the House to the wording of my amendment. Subsection (2) refers to the guidance being used,
	"in order to achieve the best interests of the child".
	Subsection (3)(a) provides that the Secretary of State shall, before publishing the guidance, consult and seek approval from,
	"experts in the development and safety of children".
	It is of course important to consult child development experts but in this particular case people who know about the issues relating to the safety of children should also be consulted when devising such guidance.
	My amendment also provides that the draft of the guidance should be laid before and approved by resolution of each House of Parliament. That would make it quite a strong vehicle for bringing consistency and rigour into the system. Standing alongside the successful amendment tabled by the noble Baronesses, Lady Gould of Potternewton and Lady Thornton, an amendment such as this would certainly help to satisfy all of us that the issues about potential harm to children are being addressed seriously. I beg to move.

Baroness Howarth of Breckland: My Lords—

Lord Adonis: My Lords—

Lord Adonis: My Lords, we are grateful to the noble Baroness, Lady Walmsley, for raising the issue. We have demonstrated, both in the amendments that I have moved this evening and in those that we have accepted from my noble friends, that we take the safety of children and all legislative and other means for ensuring that they are protected very seriously. That applies to the concerns raised by the noble Baroness too. I am not entirely closed-minded about the issues that she raises. As we have shown, we are prepared to consider all issues relating to child safety again and again where we think that changes would lead to a better regime for the protection of children.
	I invite the noble Baroness perhaps to tell me in more detail her concerns after the debate. She made a rather enigmatic remark about the courts not being unwelcoming—I think that was her phrase; it was something of that kind—to such guidance, or her having reason to believe that they might welcome it. I would very much welcome any information that she could give me on that, as our advice is that the courts are content with the status quo and have not exhibited any concerns about the absence of guidance for using their powers. Their powers as set out under Section 37 of the 1989 Act are very robust in the instructions that they can give to local authorities for the investigation of cases where there could be a public law dimension, and in which care orders or other interventions may be required.
	Our current position—subject to further discussion, which I am prepared to undertake—is that we do not see a case for the further guidance because it would meet no need. Therefore, it would not lead to an improved regime. Indeed, we are somewhat concerned that issuing guidance by the Secretary of State, as the amendment suggests, could even have the effect of limiting the discretion of the judiciary, despite all the eminent people that the noble Baroness suggests we should consult. We would then have to lay down the specific cases, or give indications of what those cases would be, where they should act, which could only have the effect of circumscribing the discretion of the courts, unless the guidance was so general that it did not serve to amplify in any way on Section 37 of the 1989 Act.
	We see this in the context of the amendments we have passed today. These amendments strengthen investigating procedures in respect of children who may be at risk. Amendment No. 27 moved by my noble friend Lady Gould sets out the statutory approach that we have now agreed to risk assessment. CAFCASS has made it clear that if its risk assessments alerts it to concerns for children, it will take the opportunity to refer them directly to the local authority to make the necessary investigations under Section 37 of the 1989 Act.
	Taking all this together, we are not at the moment persuaded that there is a case for further change, but we are mindful of the need to do everything we reasonably can to meet concerns about child safety. If the noble Baroness wishes to amplify on her earlier remarks to me, I would be happy to look at the matter further.

Baroness Walmsley: My Lords, I thank the Minister for his response and other noble Lords for their support for the idea of this amendment. I am sure that it would not be beyond the capability of the Government and their lawyers to draft guidance which, while setting down the range of circumstances under which these powers should be used, could at the same time make it clear that the discretion of the court was not fettered or limited to those situations. One would not want to fetter the court. Perhaps a practice note to go with such guidance might be helpful. My enigmatic remark related to conversations I have had in confidence with members of the judiciary, so I cannot go any further than that.
	I am particularly taken by the comments of the noble Baroness, Lady Howarth of Breckland, about the amount of time spent on children in public law and private law. I am looking for rigour and consistency and I do not argue for one moment that the Section 37 powers are not robust. What we want is for them to be used and used consistently. It is like the risk assessment issue—some people did it but others did not. In some circumstances where they did not, there may have been a problem. This is why the noble Baroness wanted to introduce her successful amendment. My approach is the same. In some cases these powers are used perfectly appropriately; in others, one has the feeling that there are situations where they should be intervention and there is none. That is why I think guidance might be helpful.
	It is not the answer to everything—guidance is only guidance. But it can have considerable power when it relates to issues like this, where a child could be killed if the courts did not use the powers appropriately. The pressure on them to comply with the guidance would be considerable. I am sure all the expert practitioners in the country would want to contribute to the consultations that take place before the publication of these guidelines. I am sure the Government would not be short of experts to advise them on such guidance.
	I have listened to what the Minister said. Perhaps we can have a conversation about this issue before the next stage of the Bill. I tabled the amendment in the spirit of the constructive development of the safety issues of the Bill. I beg leave to withdraw the amendment.

Baroness Barker: My Lords, I find myself in the unenviable position, late at night when people are tired, of having to go through something quite technical at some length. I crave the indulgence of the House to do so. We discussed this matter in a very short period at the end of a day in Grand Committee. I am afraid that we did not do the subject anything like the justice that it should have had. It was a highly unsatisfactory discussion and outcome. So I have to return to the subject at some length.
	The issue concerns the adoption of children from this country in countries abroad. Frequently, they will be adoptions by relatives of the children. The Government's response in Committee was that this would be a deregulation too far. The noble Lord, Lord Adonis, accepted that the proposal in this amendment might appear burdensome to some individuals. Our case is that for many individuals it will not be burdensome, it will be impossible. A measure that is designed to protect children may have the effect that they cannot be placed with the most suitable adopters, who are often people with whom they have a relationship. Noble Lords will understand that this amendment is to give the power to waive the period of 10 weeks' residence in this country with the people who are going to adopt the child.
	The Minister said that the period for the child to have lived with the adopter was being reduced from six months to 10 weeks. He described that as
	"a significant move in the direction that the noble Baroness wishes".—[Official Report, 17/10/05; col. GC 178.]
	That is misleading. Under the existing provisions of Section 55 of the Adoption Act 1976, the court cannot make an order unless the child has had his or her home with the prospective adopters for six months prior to the order. Under the 2002 Act, the 10-week period must have elapsed before the application can be commenced. Even if the court and all the parties act with the greatest possible speed, it is most unlikely that an order could be made in less than, say, three weeks after the issue of the application. In practice, it could be much longer. The move in the right direction may not be very significant.
	There are other changes that have an effect in this matter. Prior to June 2003, the restriction on taking a child out of this country for adoption did not apply if the child was to be adopted by a parent, guardian or relative, which was as defined as including aunts, uncles and grandparents, but not great aunts or great uncles. Since that date, the amendment to the 1976 Act introduced by the Adoption and Children Act 2002 has removed the exemption in relation to adoption by relatives. The 2002 Act does allow for regulations to be made that would make exceptions for relatives, but none has been made.
	In addition, the 2002 Act has made a significant amendment to the Children Act 1989, which restricts the ability of a local authority that has a child in its care to obtain leave of the High Court to place the child outside England and Wales if the placement is to be for the purpose of adoption. That amendment will come into force with the rest of the 2002 Adoption Act on 30 December this year. It is somewhat illogical that the power exists for the court—any court, it could be a magistrate's court or a family proceedings court—to make an order permitting a local authority to place a child in its care outside the jurisdiction under paragraph 19 of Schedule 2 to the Children Act 1989, including overruling a parent's objection to such a course if the court is satisfied that the parent is unreasonable in refusing to consent, as long as, from 30 December when the Adoption and Children Act comes into force, the placement is not for the purpose of adoption.
	There are no specific requirements about the report that must be supplied to the court or about the nature of the supervision that it is proposed will be exercised once the child leaves the jurisdiction, although, in practice, the court will wish to be satisfied that the arrangements are going to be made. The court in such Children Act proceedings is required, as it will be in the proceedings under the Adoption and Children Act 2002, to regard the child's welfare as its paramount consideration. However, the court may, in those cases where a placement for adoption is proposed and it is impossible for the prospective adopters to comply with the residence requirements of Section 84 of the Adoption and Children Act, find itself unable to make the order that would, in its view, be the best one to promote the child's welfare.
	In Committee, the noble Lord, Lord Adonis, said that it was necessary to have regard for the fact that once a child was outside the United Kingdom, he or she would no longer have the protection of the authorities in this country. The same applies to children placed, with the leave of the court, outside the jurisdiction under the Children Act 1989.
	The noble Lord suggested that should the adoption not proceed as planned, we in the UK would not know whether it had occurred. That is a possibility. But the reason for suggesting in the amendment that this power should be exercisable only by the High Court underlines the importance of careful scrutiny that would be required before an order were made. In practice, in placements for the purpose of adoption, it is likely that careful assessments and inquiries would have been undertaken before an application was even made to the court and that there would be an even greater likelihood that it might be the case, say, if the child were placed with foster carers under the Children Act provisions, that the overseas authorities concerned would notify the UK authorities if for some reason the adoption did not proceed.
	The trial period required before an adoption order can be made has been put in place to enable the court, with the benefit of reports presented to it by the adoption agency, to satisfy itself that the child has settled in well with the new family. It presents a problem where the family does not live in the same country as the child. The solution we have adopted in England and Wales is that adopters who live in another country must be in this country for a trial period. That is a major drawback, particularly for relatives who live abroad and who may have jobs abroad. They may not have jobs at all but simply live abroad, but they are the only relatives of those children.
	The point of this amendment is to enable families living abroad who are going to adopt children to do so, when it has been determined that they are the best people. As the noble Lord, Lord Adonis, outlined the matter, adopters will have to move back to this country for a period, which may jeopardise their livelihoods and would not be in the best interests of children.
	I have taken a lot of time on the amendment, for which I apologise. I realise that these provisions apply to a very small number of children, but I do not think that I shall have an opportunity in the near future to raise their case again. All we ask is for the High Court to have the flexibility, in particular cases where it is satisfied that it is in the best interests of a child to be adopted abroad, to enable that to be done in a way which does not mean those prospective adoptive parents cannot meet our criteria. What matters is the welfare of the child when living with those adoptive parents. I cannot see why insisting that they be assessed for an extended period in this country will necessarily help the court to determine what happens. I beg to move.

Earl Howe: My Lords, I very much share the concerns expressed so well by the noble Baroness. In what may appear to be the rather arid terminology we are using in these amendments, it always helps to give a graphic example—I hope this is a graphic example. I have been advised of one case where a local authority wished to place a child with her aunt who lived in Spain, who was the child's only relative in the whole of Europe. The aunt and her husband already had three young children. The husband was employed in Spain and the two older children were at school there. So, in order to achieve an adoption placement with the aunt it would have been necessary for the aunt, her husband, and, in practice, the other children, to come and live in this country until an application could be made after the child had had her home with the family for 10 weeks. One has to ask where that home would have been—in some temporary lodging or other, very probably. How would that have been funded? Maybe by the local authority, but we do not know. Would the husband have lost his job? Probably, and the family would have been put in the position of being unable to support either this child or the other children.
	In another case, pending at the moment, a local authority wanted to place a small child with prospective adopters who have already adopted her two brothers. Since the earlier adoption orders were made, the family has moved permanently to the Republic of Ireland. To enable the placement to proceed, the family has contemplated the possibility of arranging for the parents to come to live in temporary accommodation in England for several months, leaving the older children with a relative in Ireland so that they can continue their schooling. Not only would that impose considerable hardship on those older children, but it would mean that there would be no opportunity to test how well the older children adjusted to the presence of the younger ones, or how well the parents would be able to look after the child when they had the older to children to care for as well.
	The amendment proposed would introduce an element of flexibility to enable the court, where proper safeguards were in place, to make an order that would best meet the needs of the child concerned. The drawback of the Government's proposals, apart from the disruption to the lives of the prospective adopters, even assuming that they were able to comply, is that the observations of the agency on the development of the child's relationship with the prospective adopters are bound to take place in artificial surroundings. I suggest to the Minister that this is a matter to which the Government may agree to give some further thought.

Earl Howe: My Lords, Amendment No. 33 returns briefly to an issue which we have debated a number of times over the past three or four years, most recently during the passage of the Children Act 2004. The issue is private fostering.
	This Bill quite properly tightens up the current legal provisions relating to inter-country adoptions, and it does so with the purpose of protecting vulnerable children from exploitation. But there is another group of children whom one could argue were equally vulnerable to children adopted from abroad, namely children who are the subject of private fostering arrangements. It seems to us that anyone who wanted to get round the procedures associated with inter-country adoption could opt instead for private fostering, where the regulations are, to put it mildly, a great deal looser. That is the justification for our having tabled this amendment.
	The numbers of children who are privately fostered are probably considerable. The best estimates are that about 10,000 children in England and Wales are fostered privately and some studies mention as many as 15,000. Between 80 and 90 per cent of them come from West Africa. At the moment, private foster carers are required only to notify local authorities of the arrangements that they have made: in other words it is up to private fosterers to own up. That is not the kind of process which is likely to expose to the daylight those foster parents who may pose a danger to children. When serious problems occur it is often too late. There is a tighter alternative to notification, which is to make all private fosterers subject to registration. That is the alternative which we have consistently proposed to the Government on a number of occasions and which they have, with equal consistency, rejected at least in practice although there is provision in the Children Act to go ahead if the Government believe that that is right.
	We all acknowledge that a registration scheme would be more bureaucratic than simple notification, but it would also have a number of advantages. One of them would be that local authorities would be able to bring a private fostering arrangement to an end if they thought that it was undesirable. They cannot do that at the moment, or at least not without a great deal of difficulty. Another advantage would be to ensure that private fosterers were approved in advance as being suitable. People often object that this is none of anybody's business if the arrangement is purely private. But with the tragedy of Victoria Climbié still fresh in our minds, my own view is that many of these arrangements should be vetted in advance; and at the very least the child's individual needs should be assessed and provided for. Notifying yourself as a foster carer is not at all the same thing as being approved, but in the minds of birth parents overseas, it can look like the same thing, and that can lead to a false sense of security.
	I should be grateful if the Minister could take this opportunity to say how the Government's thinking has developed since we debated the issue last year. What have been the results of the enhanced notification system thus far? What criteria are they using to decide whether the current system is or is not satisfactory? The last time that the Government collected figures in this area was 1991, so the up-to-date statistics will be quite revealing—perhaps in a way that may not be fully anticipated. I beg to move.

Baroness Barker: My Lords, I do not know whether the noble Lord, Lord Adonis, is aware of this but I believe that he is the third Minister who has been at the crease since the noble Earl, Lord Howe, and I raised this subject. The noble Earl and I take it in turn to go into battle on this issue, and today he has been the equivalent of Freddie Flintoff and I shall be the spinner.
	Has the Minister had an opportunity to read the recent report on the work done by BAAF, in consultation with the Voice newspaper? That paper for the first time did a large survey among its readership about private fostering—and a very revealing document it is too. It has long been known, since the publication of the report People Like Us, that there are different communities within this country in which private fostering is more prevalent and more the usual custom, partly because of the traditions in the parents' country of origin. They are very honourable traditions in which extended families, friends and relatives look after children.
	On the last occasion that we discussed this subject, the noble Baroness, Lady Ashton, was keen to impress on us that some local authorities had pilot schemes in which the local authority had employed officers to work with particular communities and potential private fosterers. Could the noble Lord, Lord Adonis, tell the House what has happened in those pilot areas and what the results of those schemes have been? That was at that point the Government's principal reason for resisting the reasonable and persuasive case set out by the noble Earl, Lord Howe, to move towards a more rigorous system of registration.
	Finally, we are talking not only about the case of Victoria Climbié—there are many other cases of children in such situations, such as Toni-Ann Byfield and other—when the understanding of parents who live abroad of the systems of childcare at work in this country has been perhaps in part a contributory factor in those children being put into situations of great danger—situations which we would not allow to happen if they were any other child. On these Benches, it is our contention that until such time as private fostering is registered, we run the risk of leaving these extremely vulnerable children—perhaps some of the most vulnerable—in danger. So I am very pleased to support the noble Earl, Lord Howe, again on this matter.